U.S. District Judge Henry Hudson in Richmond, Virginia had struck down the centerpiece of the national health care plan: the mandatory requirement that all citizens get health care coverage. The lengthy 42-page opinion details how the law falls outside of interstate commerce jurisdiction — the concern that I previously voiced in a column.
Hudson ruled that the mandatory requirement “exceeds the constitutional boundaries of congressional power.” However, he left the other parts of the law intact.
Notably, two other courts in Detroit and Lynchburg, Va. have upheld the law.
This is an important victory for Virginia’s attorney general, Kenneth T. Cuccinelli II, who has a stand-alone challenge from the giant challenge filed in Florida. Twenty attorneys general and governors have filed a challenge in Pensacola, Florida. Cuccinelli’s challenge will now move in tandem with the other case, which will move roughly together toward the Supreme Court.
On a practical level, this could be a problem for the Administration. With roughly half of the states challenging the law, you already have a reluctance to enforce the law. This will add to that resistance. However, since the requirement will not kick in for a couple years, there is no need for an injunction.
Today’s case is Commonwealth of Virginia v. Sebelius, 10-cv- 00188, U.S. District Court, Eastern District of Virginia (Richmond).
Judge Hudson previously denied the federal government’s motion to dismiss the case, warning that the mandatory insurance provision “literally forges new ground and extends Commerce Clause powers beyond its current high-water mark.” While I believe that the Administration has strong cases supporting its position, I agree with that statement. It is difficult to see what would be left of federalism guarantees in the Constitution if Congress has this jurisdictional authority. It is certainly a matter upon which people of good faith can disagree. I strongly encouraged members of Congress to allow states to opt in — perhaps with a reward for such participation in terms of funding. That would have avoided this ruling and much of the constitutional controversy.
It is important to remember that this ruling has little to do with the merits of national care reform. This is about how to interpret the Constitution and the scope of congressional power.
Here is a copy of Judge Hudson’s opinion: Health Care Ruling
There has been a quesiton raised about that fact that Hudson is an investor in Campaign Solutions, a Republican consulting firm which has worked for candidates opposing health care reform, including Virginia Attorney General Ken Cuccinelli. If he is still an active investor, I would be frankly surprised. I believe such connections would be a serious mistake for any prosecutor or judge. While I certainly understand people raising the issue, there is no evidence that this opinion was motivated by anything other than Hudson’s well-known conservative view of the Constitution. The opinion is a thoughtful and comprehensive take on the issue. Many can disagree with it and the Administration clearly has solid arguments to make before the Court of Appeals. However, it appears motivated by the deep-seated philosophical convictions and cannot be dismissed as a political screed.
Jonathan Turley
eniobob,
Here’s another article on the judge that was posted today:
From TPMMuckraker
Health Care Judge’s Interest In Anti-Health Care PR Shop Raises Questions
http://tpmmuckraker.talkingpointsmemo.com/2010/12/health_care_judges_interest_in_anti-health_care_pr_shop_raises_questions.php?ref=fpb
Excerpt:
Federal judge Henry E. Hudson’s ownership of a stake worth between $15,000 and $50,000 in a GOP political consulting firm that worked against health care reform — the very law against which he ruled today — raises some ethics questions for some of the nation’s top judicial ethics experts. It isn’t that Hudson’s decision would have necessarily been influenced by his ownership in the company, given his established track record as a judicial conservative. But his ownership stake does create, at the very least, a perception problem for Hudson that could affect the case.
“Is Judge Hudson’s status as a shareholder coincidence or causation? Probably the former, but the optics aren’t good,” James J. Sample, an associate professor at Hofstra Law School, told TPM. “Federal judges are required by statute to disqualify themselves from hearing a case whenever their impartiality might reasonably be questioned. It’s a hyper-protective rule and for good reason. At the very least, his continued financial interest in Campaign Solutions undermines the perceived legitimacy of his decision.”
The rules are pretty straightforward: if a judge is invested in a company that is a litigant in a case, he or she can’t be involved. But in cases where a company owned by a judge has an interest in the outcome of a case but is not a direct litigant, the lines get much more murky.
“The company is not technically a direct party in the case,” Sample told TPM. But he noted the judge is “treading very close to the line.”
“You would certainly want to ask whether he has an interest in an organization that’s devoted to an outcome that he has control over,” Professor Charles Gardner Geyh of the Indiana University Maurer School of Law told TPM. “That would certainly be the inquiry I would want to undertake.”
rafflaw:
Only in America, I guess.
eniobob,
That is an interesting connection. The company that the judge owns stock in has called him a passive investor. Just a coincidence, I am sure.
While you of course know better, much better Professor..
What I saw as unprecedented was that this was a mandatory requirement to a formal Codified Monopoly…
For me, therein lies the rub, so to speak..
To the people making the car insurance analogy…it is not mandatory to own a car this is true..However, the healthcare “market” is an interesting one because it is 99.9% certain that every person will avail themselves of the services of this market at some point and it is not fair that the people who choose not to or are unable to afford it make it more expensive for the rest of us.
I smell a rat,campign solutions,PU!!
“Judge Who Ruled Against Healthcare…On the Payroll
Posted on December 13, 2010
“Turns out the Judge who ruled against Obamacare was on the payroll…
Literally!
In a stunning case of courtroom malfeasance, turns out the Judge owns part of a company lobbying against Healthcare…
And which received money from Cuccinelli!
http://btx3.wordpress.com/
Rafflaw,
I should clarify, I’m unsure as to the legality of this law. I’ll let those in the know argue that one. I just added the “legal” caveat because it’s important.
Mike A., well said. I think the Right will be pushing into the direction that the left wanted to begin with.
Bdaman, Explain further how this is an unfunded mandate when people will be buying their own insurance with their own money with stipends or credits from the Feds for low income people?
I have just finished reading the entire opinion. Judge Hudson’s determination appears to rest upon his conclusion (the argument advanced by Atty. Gen. Cuccinelli) that a decision not to buy health insurance cannot be said to impact interstate commerce within the meaning of the Commerce Clause. In other words, Congress may regulate voluntary activity that affects interstate commerce, even if remotely, but the Commerce Clause cannot reach inactivity. The corollary to this conclusion is that Congress may not constitutionally address the national financial impact of providing medical care for the indigent and uninsured under its Commerce Clause powers.
I strongly disagree with the Court’s rationale and conclusions, which, of course, means nothing. But it can hardly be said that the cost of providing medical care for 50+ million uninsured in this country does not strongly impact interstate commerce. To those who are concerned that a different outcome would render the Commerce Clause essentially meaningless, I can only respond that we have long since passed the historical period in which we were largely a nation of small, independent farmers.
Ironically, however, conservative opposition to the legislation may ultimately increase pressure for enactment of a non-profit, single-payer system. So to my friends on the right I offer the gentle reminder to be careful what you wish for.
“Cato 1, December 13, 2010 at 3:11 pm
eniobob:
I have heard MA’s system is on the ropes. Romney really did a bad job with that.”
Maybe that’s why Romney has been coy about his announcing to run for president.
This is NOT mandatory. You get a tax break by getting insurance. The tax provides a disincentive to go without. By what logic is that a mandate? Everyone seems to think not getting insurance is going to be a crime.
The other problem is nobody is signing up for the program. Since July only 8,000 people signed up.
The 8,011-Person Crisis
http://online.wsj.com/article/SB10001424052748703805004575606891744060162.html
The other recent development is all the waivers being issued.
As of December 3rd there are over a million and a half people of over 200 companies.
http://www.hhs.gov/ociio/regulations/approved_applications_for_waiver.html
All for thee but not for me.
the states have plenty of time to implement
I’m not sure about that. They got to figure out what they are suppose to do first.
The session exemplifies the overwhelming sense of confusion among state lawmakers and health care officials around the country as they scramble to figure out what exactly health care reform means for their governments, their citizens and, not least of all, their budgets. With estimates ranging from state savings of $1 billion to $27 billion in additional costs, the one thing clear about health care reform is that little, if anything, is actually clear.
“It’ll probably be 10 years before it all shakes out,” says Chris Whatley, of the Council of State Governments, only half-jokingly. “This will push the fabric of the state-federal relationship in new directions, and we don’t know how it will all come out.”
A primary source of the confusion is the law’s interaction with 50 very different situations around the country. Many state officials have labeled the entire initiative an unfunded mandate that will stress state fiscal systems already weakened under the weight of falling tax revenue.
http://www.stateline.org/live/details/story?contentId=475804
Bdaman,
with all due respect, the states have plenty of time to implement and with at least 20 of them fighting it in court, they are not worried about implementing it at this point anyways.
rafflaw
Cantor does not want the Supremes to argue it now because he is trying to be an honest fellow. Cantor is doing it because he knows he has a chance with “his” umpires.
Well from what I understand the states have alot of things that have to be done in order to be in compliance with the law when it starts. That being said, regardless of the three decisions, 2 for 1 against, the states have to proceed in setting it up because it is the law. The states have to continue moving forward in implementation of the law. If they get to far into it only to get a ruling from the S.C. that it’s unconstitutional alot of state dollars are wasted. We need an answer A.S.A.P, IMO
Bdaman,
No problem, I understand your approach,and it is a good one generally. However, Cantor is a real partisan hack that gets my Irish dander up. And Cantor does not want the Supremes to argue it now because he is trying to be an honest fellow. Cantor is doing it because he knows he has a chance with “his” umpires.
I agree with you Gyges, but I do think the law is legal. However, I think the insurance companies that you mention will actually be quietly backing this individual mandate because it brings with it 30-40 million new paying customers that are in their pockets as of today.
On a side note Pelosi is up for one of the best quotes of the year at number 7.
“We have to pass the (health care) bill so you can find out what is in it.” Nancy Pelosi, speech to National Association of Counties, March 9.
You’ll want to check this story because O’Donnel is up for two.
http://www.news4jax.com/news/26106610/detail.html
Rafflaw,
I’m less concerned with law suits (I’m sure there’s a wave of lawsuits for every major legislation) than I am with having a society that works and a law that’s actually legal.
The battles that I thought would be sidestepped were political\economic ones. I personally have no doubt insurance companies would use economic weapons (I have no idea what those would be, but you don’t have that kind of concentration of wealth without having lots of ways to keep it) to fight something they didn’t like.
rafflaw
First and foremost you should know me by now. Alot of times I just post links to stories related to the topic. Although the majority of what I post, if not all, is right leaning. I do it so you know whats happening on that side.
Yes the score is 2 to 1 but the final score is what matters. This is why Cantor wants the Supreme Court to take it up now instead of wasting more court time. Holder is to busy to file an appeal, he’s trying to get the U.S. the World Cup.