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The End of Obamacare

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In a ruling released today in Virginia, US Federal District Court Judge Henry Hudson has ruled that the individual mandate requiring the purchase of health insurance which is the cornerstone of President Obama’s recent health care reform bill, is unconstitutional.

Because the bill was written without a severability clause, the elimination of that central provision of the legislation could result in the failure of the entire bill, which would collapse like a house of cards, although this ruling specifically chose not to address the full implications of the removal of this key provision from the bill.

The ruling came as the result of a suit brought by Virginia Attorney General Ken Cuccinnelli, who is one of more than 20 state attorney generals filing suits disputing the constitutional legitimacy of the new health care law.

In his ruling, Judge Hudson said that:

“Congress lacked power under the Commerce Clause, or associated Necessary and Proper Clause, to compel an individual to involuntarily engage in a private commercial transaction…A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product…The unchecked expansion of congressional power to the limits suggested by the Minimal Essential Coverage Provision would invite unchecked exercise of federal policy powers. At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health insurance coverage — it’s about an individual’s right to choose to participate.”

Another similar suit is currently pending in the 4th US District Court and more fill follow.  Civil libertarians are hailing this decision as an important landmark in the defense of individual rights and in the effort to reign in the expansion of government power which has taken place under the current and prior presidential administrations.  Not surprisingly, the administration, which has staked so much of its future on this legislation,  plans to appeal this decision.

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About Dave Nalle

Dave Nalle is Executive Director of the Texas Liberty Foundation, Chairman of the Center for Foreign and Defense Policy, South Central Regional Director for the Republican Liberty Caucus and an advisory board member at the Coalition to Reduce Spending. He was Texas State Director for the Gary Johnson Presidential campaign, an adviser to the Ted Cruz senatorial campaign, Communications Director for the Travis County Republican Party and National Chairman of the Republican Liberty Caucus. He has also consulted on many political campaigns, specializing in messaging. Before focusing on political activism, he owned or was a partner in several businesses in the publishing industry and taught college-level history for 20 years.
  • Christine

    I sure do hope that it is “the end of ObamaCare.”

  • Doug Hunter

    I’m completely disillusioned with the law and the courts, if this fails on the technicality of the mandate it should not be taken at all as a statement of principle but just an error in judgement by the framers of the bill.

    The government has several tools at it’s disposal to make you pay for things, they should have used a more established one. For example, you now can’t be made to purchase health insurance for yourself, but you can be made to pay for health insurance for others through medicare and medicaid??? They could have made this perfectly legal by simply sticking the government in as a middle man or even going single payer.

  • Cochise

    More like the beginning of the end. It still needs to go to the USSC.

  • Dave, you say

    Because the bill was written without a severability clause, the elimination of that central provision of the legislation could result in the failure of the entire bill, which would collapse like a house of cards, although this ruling specifically chose not to address the full implications of the removal of this key provision from the bill.

    As I noted here, a perhaps better way to have put it would have been that he decided that the mandatory purchase and related “penalty” provisions could not stand but that the remaining provisions could. Having found the mandatory health insurance purchase provision and the companion “penalty” unconstitutional, Judge Hudson determined that most sections could stand as severable from those. In view of the extreme haste with which ObamaCare had been “rushed to the floor for a Christmas Eve vote,” he found it impossible to determine whether the various other provisions would have been passed without the mandatory health insurance provision and associated “penalty.” He therefore severed those other provisions and allowed them to stand. To have referred to the penalty as a tax would, as Judge Hanson noted, have been politically “toxic;” that’s why the tax reference, present in earlier versions, was changed to a “penalty” reference in the final legislation. That’s also why efforts to garner congressional and popular support for ObamaCare used the word “penalty” rather than taxes; in a recession, taxes are seen as bad but penalties as OK.

    The reactions of the usual suspects were, of course, predictable. Those who like ObamaCare claimed that Judge Hudson is a radically unwholesome conservative “activist judge” whose decision is wrong and will be overturned on appeal. Those who dislike ObamaCare praised his constitutional scholarship and claimed that his decision will be affirmed. I think implementation of ObamaCare would be a disaster produced by a very lengthy statute generally unread prior to its very hasty passage and likely harmful not only to medical care in the United States but also bad for the economy. I hope the decision is upheld on appeal, but much can happen between now and a Supreme Court decision. The statute may be modified by the new Congress, the Supreme Court may in the interim decide another case construing the Commerce Clause differently, and/or one or more Supreme Court justices may retire and be replaced. It’s just too far away to guess. After the briefs have been submitted and oral arguments have been held it should be possible to make an informed prediction; not now.


  • Ken Cuccinelli is a bigoted [intensely anti-gay] and destructive extremist. He may go on to do real harm to this country, or his tunnel-vision approach may go down in flames as it so richly deserves.

  • zingzing

    i’m pretty sure this was wholly expected. by the way “obamacare” was staggered, i’m pretty sure they were expecting judicial challenges. this might just be a way to force further debate with attention to the details, instead of idiotic claims like “death panels” and “socialism” (the world’s moved on, catch up,) and all that nonsense. or maybe i’m overestimating politicians.

    i’ve never quite liked the idea of FORCING all americans to have health insurance, but i’m not quite sure that’s what it did anyway, and i’m pretty sure we all pay for it as if that were the case as it is. what’s so wrong with paying your portion rather than just getting the portion that the lazy don’t want to pay tacked onto your bill? seems pretty conservative to me.

    and there are so many crucial things in “obamacare” that should not go by the wayside. making sure children have health insurance (they shouldn’t be the victims of their parents’ laziness), making sure health insurers can’t deny you coverage based on a pre-existing condition (especially after they take a load of money from you before you discover you’ve had something), etc, etc, are all things that should be there.

    the healthcare bill, as it went through, satisfied very few people. it didn’t go far enough for some, went too far for others. i think, if we really looked at it, there’d be a lot we could agree on. healthcare, as it is, is a fucked up way to throw your money away. the insurance companies had their dicks out and they were wet as it was. i doubt many would disagree with that.

    but to call this “the end of obamacare” is just ridiculous. what nation do you live in? you think this is “the end?” come on now.

    and since when did the right LIKE the term “activist judge?” something’s amiss here.

  • Dan, I could have written it that way, but I was trying to keep it short and simple.

    Ken Cuccinelli is a bigoted [intensely anti-gay] and destructive extremist.

    True, Handy. But that doesn’t detract from the good he has done here.

    and since when did the right LIKE the term “activist judge?” something’s amiss here.

    Zing, Republicans will never have a problem with judges whose “activism” is a defense of the Constitution. That’s what judges are supposed to act on.


  • Arch Conservative

    By virtue of being alive big brother is going to force you to buy health insurance….

    Whether you can afford it or not……..

    Whether you need it or not………..

    Whether you want to purchase it or not….

    Sounds pretty unconstitutional to me.

  • It’s not the end of the health insurance bill, but it certainly is an improvement.

    Thank you Tea Party! Because of your obsession concerning what the *original framers wrote*, the insurance giants wont see that BIG BOTTOM LINE.

    πŸ˜€ Have a nice day, Dave

  • “The guessing game is over. We know beyond doubt that the Teabag movement was created out of whole cloth by astroturf groups like Dick Armey’s FreedomWorks and Tim Phillips’ Americans for Prosperity, with massive media help from FOX News. We see the Birther fracas — the kind of urban myth-making that should have never made it out of the pages of the National Enquirer — being openly ratified by Congressional Republicans. We’ve seen Armey’s own professionally-produced field manual that carefully instructs conservative goon squads in the fine art of disrupting the democratic governing process — and the film of public officials being terrorized and threatened to the point where some of them required armed escorts to leave the building. We’ve seen Republican House Minority Leader John Boehner applauding and promoting a video of the disruptions and looking forward to “a long, hot August for Democrats in Congress.”

    This is the sign we were waiting for — the one that tells us that yes, kids: we are there now. America’s conservative elites have openly thrown in with the country’s legions of discontented far right thugs. They have explicitly deputized them and empowered them to act as their enforcement arm on America’s streets, sanctioning the physical harassment and intimidation of workers, liberals, and public officials who won’t do their political or economic bidding.

    This is the catalyzing moment at which honest-to-Hitler fascism begins. It’s also our very last chance to stop it.” Source

  • Dave,

    Here is an article for you to read. No matter what you think or feel about liberals, we aren’t lying to you.

    πŸ˜€ Honest

  • @dirtymedia

    The Republicans are the ultimate hypocrites!

    How do we pay for health care reform ?

    ** How do you pay for tax cuts for the wealthy ?

    1. First attempt : threatening Social Security and Medicare Cut through the deficit panel.

    2. Second attempt : holding the desperate Hostage, say, by the Ransom.

    ** Inaction cost, $9trillion over the next decade, ((Some of CBO analysis : While the costs of the financial bailouts and economic stimulus bills are staggering, they are only a fraction of the coming costs from Social Security, Medicare, and Medicaid. Over the next decade, the Congressional Budget Office (CBO) projects that each year Medicaid will expand by 7 percent, Medicare by 6 percent, and Social Security by 5 percent. These programs face a 75-year shortfall of $43 trillion–60 times greater than the gross cost of the $700 billion TARP financial bailout)).

    Over the duration of healthcare debate, using the preliminary cost analysis of CBO, the reps opposed the public option stubbornly, but after the release of final score, they have been defiant on the referee.

    The nonpartisan Congressional Budget Office estimates that :
    Inaction cost in relation to health care reform totals $9trillion over the next decade.
    Reform will reduce the federal deficit by $143 billion over the next 10 years and as much as $1 trillion during the following decade.

  • Powerful words, Jeannie, although I’d hope you’d direct them at our broken political system. There are no saints or heroes on either side of the political divide. The Democrat’s caving in with regard to the extension of Bush’s tax cuts across the board is a perfect example of lack of spine. The extension of unemployment benefits could be secured by a far lesser price, such as eliminating or trimming the fat of the many government programs, not to mention the cost of our extended engagement in Iraq and Afghanistan. Shame!

    Here’s a link to Bernie Sanders’ filibuster speech on the subject.

  • Baronius

    Zing – This decision isn’t judicial activism, and conservatives aren’t saying it is. Dan(M) used the term in quotation marks to refer to the complaints that will be leveled against the judge. When you questioned it, Dave made a play on words. But no one is defending judicial activism.

    This is a matter of judicial review. Since Marbury v. Madison it’s been assumed that the courts have the right to review laws regarding their conformity to the Constitution. (We can argue whether that’s a fair understanding of the courts’ job, if you want to.) Judicial activism is the creation of law by a court.

    There’s nothing activist about striking down a law, if that law violates the Constitution. The Roe decision was ostensibly judicial review, but it was based on an extremely odd reading of the Constitution, one that wouldn’t have existed if the judges weren’t seeking a reason to legalize abortion. Likewise, if the Roberts Court were to outlaw abortion without Constitutional grounding, it would be guilty of judicial activism.

    When people are arguing over whether a decision constitutes judicial activism, debate usually focuses on whether the outcome is one that the judge wants and/or whether the ruling departs from standard legal interpretation. In this particular case, the judge was a Bush appointee, but there is no precedent either way for a governmentally-mandate purchase.

  • Baronius

    Jeannie, I don’t agree with that analysis at all. But I agree with the author, that the way the term “fascism” is used these days, “everybody is somebody else’s fascist”.

  • Nothing has changed here…

    Bar is still on talking points given to him by his blind party affiliation and Roger is acting as if he agreed with Senator Sander’s speech. Pray tell me, what did the anarchist get out of a pro American filibuster in the name of the *unwashed* masses?

    πŸ˜€ All these brains cells in both of you are going to waste, huh?

  • I am really surprised that both of you read & responded to my comments. Is your Amish style shunning over or is there no one else around?

  • Doug Hunter

    “Powerful words, Jeannie”

    Absolutely, Roger. Designed to elicit an emotional fear response, motivate you to action, and justify your own negative thoughts and actions.

  • Ruvy

    I am really surprised that both of you read & responded to my comments. Is your Amish style shunning over or is there no one else around?

    They don’t like what I write, Jeannie, so they are answering you. I don’t have an American party affiliation – and while I believe in socialized medicine, this bill was trash. If the courts tear it apart bit by bit without waiting for it to bankrupt you, judicial wisdom, if not activism, will have been displayed.

  • Forgive me, Jeannie, for acknowledging you. It was a mistake.

  • Ruvy

    By the way, Dave, the plural for attorney-general is attorneys-general.

  • Doug Hunter

    To add extra irony, Jeannie is copying propaganda from other sources in one coment then in the next accusing others of relaying talking points.

  • I wasn’t relaying anything, Doug, just tried my damnedest to expand her thinking.

  • Baronius

    Honestly, Jeannie, I was just trying to be polite. Just because I don’t want to get into a long discussion doesn’t mean we can’t be courteous.

  • Doug hunter,

    #10 is referenced to it’s original source.

    As far as a fear response, that is what all of you seem to desplay whenever I post or comment here.

    πŸ˜€ Hit a few nerves?

  • DESPLAY sounds more ethnic than display.

    Hope it doesn’t upset.

  • Dave,

    I don’t know who buried your article. I want to make that clear in-case you thought it was me.

  • zingzing

    baronius: “This decision isn’t judicial activism, and conservatives aren’t saying it is.”

    it never is, when it goes the way you want it to. if you wriggle around enough, you can turn anything into anything you want, including the constitution. just ask a corporation. oh, they aren’t talking you say?

    then again, i knew that would be the part of my long screed someone would respond to. thought about just leaving it out, and i guess i should have.

    may you never be unhappy with your healthcare.

  • Baronius

    “it never is, when it goes the way you want it to.”

    Zing, that’s unfair. I gave examples, including the hypothetical one about the Roberts Court outlawing abortion. That’s a policy I’d like to see, but the courts aren’t where it should be decided.

    I responded to that comment because it related most directly to the topic at hand. Personally, I bet that we’re not going to do any better at coming to agreement on health care policy than we did in the last couple of years, so I didn’t feel like rehashing the whole thing.

    I also disagree that this is the beginning of a process of fine-tuning. The mandate was a central point in the health care bill, so this isn’t a matter of subtle adjustment. Also, there’s reason to believe that if the Supreme Court invalidates that portion, it would have to declare the entire bill unconstitutional. In that sense this could be the end of Obamacare.

  • zingzing

    baronius: “Personally, I bet that we’re not going to do any better at coming to agreement on health care policy than we did in the last couple of years, so I didn’t feel like rehashing the whole thing.”

    ah, but even you must agree that there are portions of the bill that are for the good. like the child healthcare bit, the prior condition bit, etc. would you let those things slide back into non-existence?

    “The mandate was a central point in the health care bill, so this isn’t a matter of subtle adjustment.”

    but that mandate wasn’t what had been hoped for. no, it’s not a matter of subtle adjustment. it’s a matter of major adjustment. that mandate was OBVIOUSLY going to be challenged in court. there’s no way it wouldn’t be. i, for one, don’t think that politicians would be stupid enough to believe it wouldn’t be. so that makes it quite curious that they put it in there in the first place. what’s the reason?

    “Also, there’s reason to believe that if the Supreme Court invalidates that portion, it would have to declare the entire bill unconstitutional.”

    yep, that’s both the strength and the weakness of the bill. it’s strange how the judge in this case didn’t address that fact. i wonder why.

    “In that sense this could be the end of Obamacare.”

    surely, you don’t believe that. it’s already not. it’s going to be appealed and discussed and then appealed again. this is going to be in court for a long time to come. it could be the beginning of the end, but it is most certainly not the end right now. not even close.

  • Baronius

    – I don’t know the specifics of the child insurance portion, or the preexisting conditions portion. Maybe I used to, but I doubt it. Should people be covered by their parents’ plan until they turn 27? Should insurance companies have to enroll people who are clearly ill at the same rate as those who are healthy? Do we even know what the final bill says on those issues, or were they deferred for some future panel or regulatory agency to decide?

    – I assume they put the mandate in because they thought it would be a good idea, and they thought it would have a chance making it through the courts. The courts are a crapshoot, sadly. I don’t think the Supreme Court will overturn the entire 172000-page piece of legislation, but I’m not sure how they can avoid it. IF this particular case goes to the Supreme Court (likely) and they rule against the federal government (kinda likely) and they have to put down the whole bill with it (less likely) and they actually do (even less likely), then the “Obamacare” legislation will be off the books, and I don’t see the new Congress reinstituting anything similar. They’ll go back to the drawing board.

  • Baronius,

    The GOP wrote a lot of those 172000 pages, mostly dealing with the $ and not any actual health care.

    Besides, there are three rulings to consider.

  • Roger,

    “Facts don’t necessarily have the power to change our minds. In fact, quite the opposite. In a series of studies in 2005 and 2006, researchers at the University of Michigan found that when misinformed people, particularly political partisans, were exposed to corrected facts in news stories, they rarely changed their minds. In fact, they often became even more strongly set in their beliefs. Facts, they found, were not curing misinformation. Like an underpowered antibiotic, facts could actually make misinformation even stronger.” Source

    This is a really good article, it describes how we react to anything outside our personal belief systems.

    I myself get really angry and I’m sorry I took that anger out on you and Bar.

    These 48 families immorally bailed out by the rest of us makes me sick. They certainly don’t need more money and I’ll never eat a MARS BAR again!I stopped Wall Mart after they sold out to Chinese crap.

    I don’t expect another response from you, but I tried, yes?

    πŸ˜€ Bye

  • I can appreciate your sentiment. Barry Sanders really made his case on the Senate floor yesterday about bailing out the super rich. To no avail, of course, because the compromised bill is going to pass both houses with flying colors.

  • I can appreciate your confusion. Barry Sanders is an NFL Hall of Fame football player. Bernie Sanders, who’s never run for a touchdown in his life, is a U.S. Senator.

  • Amazing, a hall of fame footballer becoming a gutsy politician. Only in America.

  • Glenn Contrarian

    Is this the end of Obamacare?

    I don’t think so. Why?

    5,615,000 – Number of Americans with pre-existing conditions who can no longer be denied coverage by health insurance companies

    3,765,298 – Number of seniors who benefited from additional coverage when Democrats closed the Medicare “donut hole”

    8,327 – Number of community clinics created by the Affordable Care Act

    When it comes to the lack of a ‘severability clause’, I read earlier today that even though such wasn’t included in the legislature itself, due to the sheer size and scope of the legislation, the federal court system can for all intents and purposes approach the issue as if there were such a clause…and has done so before.

    So is this the end of Obamacare? I think not…and the insurance companies are praying that no court decides to sever the mandate from the law as described above…because then their profitability would surely go right out the window.

    When this goes to SCOTUS, I recommend for all those here who might be interested in the options market, that y’all might consider entering a ‘strangle trade’ on positions of the largest health insurance companies in the days before the decision…for such might be the financial opportunity of a lifetime.

  • Jeanie, have you gone completely around the bend? Your comments on this thread are positively surreal.

    As for Glenn’s last comment, what he points out is exactly why this is the end of Obamacare. When the bill was a big, fat payoff for the insurance industry it had some legs. Once the mandate which was basically nothing but a transfer of wealth from working people to insurers is gone, thee legislators they’ve bought off are going to scramble to replace Obamacare with something more rational.


  • GOP/TEA,

    Here’s an update.

  • Roger,

    Thank you for that comment, I don’t freak-out over typos, but apparently your shadow still does. I know you meant Bernie πŸ˜€

  • Glenn Contrarian

    We’ll see, Dave. If Obamacare’s not around come the midterms of President Obama’s second term, you’ll be right and between bites of crow I’ll admit you told me so. And of course the converse holds as well.

    But I suspect there’s a significant chance that Obamacare itself won’t go away…but it may go through a lot of changes along the way. So did Medicare, come to think of it….