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Tilting at Windmills

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December 13, 2010

VIRGINIA COURT RULES AGAINST HEALTH CARE MANDATE.... Conservative opponents of health care reform have been largely counting on the courts to undo what they couldn't defeat in Congress, but they haven't had much luck. That changed today.

In October, a federal judge in Michigan found the law constitutional, ruling that the individual mandate -- originally a Republican idea, incidentally -- is entirely legal through the Commerce Clause. In November, a federal judge in Virginia came to a nearly identical conclusion.

These victories weren't unexpected. As Jonathan Cohn noted a while back, the only way to reject the mandate is to take a "fairly radical" reexamination of the Commerce Clause.

But a fairly radical Republican, Virginia Attorney General Ken Cuccinelli, carefully chose a court with some fairly radical judges, hoping to get a fairly radical ruling. And that's exactly what happened this morning.

A federal district judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first court in the country to invalidate any part of the sprawling act and insuring that appellate courts will receive contradictory opinions from below.

Judge Henry E. Hudson, who was appointed to the bench by former President George W. Bush, declined the plaintiff's request to freeze implementation of the law pending appeal, meaning that there should be no immediate effect on the ongoing rollout of the law. But the ruling is likely to create confusion among the public and further destabilize political support for legislation that is under fierce attack from Republicans in Congress and in many statehouses.

In a 42-page opinion issued in Richmond, Va., Judge Hudson wrote that the law's central requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution.

For those keeping score, there have now been three federal court rulings, two won by supporters of reform, one won by opponents. Reinforcing the notion of a politicized process, the two victories were delivered by judges appointed by Democratic presidents, while today's ruling was issued a Bush appointed jurist with a long history of Republican activism in Virginia.

Indeed, as far as I can tell, pretty much everyone expected today's ruling to come down as it did.

I'd also note that Hudson's ruling today certainly appears to be a classic example of what conservatives like to call "judicial activism" -- he rejected a common legal standard to overturn a congressionally-approved law to reach an ideological outcome.

It should add fuel to the rhetorical fire. Earlier this year, there were increasingly common criticisms of "conservative judicial activism" in the discourse, with an overabundance of examples of judges on the right, guided solely by ideological goals, making rulings in "an aggressively activist manner."

E.J. Dionne put it this way: "[I]t should become clear that the danger of judicial activism now comes from the right, not the left. It is conservatives, not liberals, who are using the courts to overturn the decisions made by democratically elected bodies."

Of course, the right probably won't mind today, since judicial activism is fine so long as they approve of the outcome.

I suspect I'll have more later, but if you're looking for a copy of the ruling itself, it's online here.

Steve Benen 12:55 PM Permalink | Trackbacks | Comments (37)

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"Judge Henry E. Hudson...declined the plaintiff's request to freeze implementation of the law pending appeal..."

Freezing implementation would probably have been quite damaging, so this was only a partial victory for Republicans.

Posted by: delNorte on December 13, 2010 at 1:01 PM | PERMALINK

If the Virginia court ruling is upheld, I am curious about the knock-on effect of redefining the Commerce Clause. What amount of chaos will Roberts, Scalia, and Thomas be willing to tolerate in order to achieve an ideologically acceptable decision?

Posted by: AK Liberal on December 13, 2010 at 1:03 PM | PERMALINK

The judge refused to grant an injunction, which was the real danger to the legislation.

Posted by: Holmes on December 13, 2010 at 1:05 PM | PERMALINK

Here's a question about legal challenges to bills. If a clause is declared unconstitutional, does the whole bill get thrown out, or is just that clause?

When you talk about radical interpretations of the constitution, the US Supreme Court has at least 4, and maybe 5 such radicals.

Posted by: Daryl McCullough on December 13, 2010 at 1:06 PM | PERMALINK

The irony of this is this hurts insurers more than it hurts Obama. Without the individual mandate, insurance companies will go bankrupt because people will only buy health insurance when they need it. So, in an effort to spite Obama, conservatives hurt their donor base...

Posted by: Wannabe Speechwriter on December 13, 2010 at 1:08 PM | PERMALINK

I haven't read the decision yet, but read a summary of it that said the judge found the mandate severable from the law, so only the mandate gets thrown out. As noted previously, that hurts the insurance companies if the other provisions regarding preexisting conditions etc. are still in effect. Brings to mind the old "be careful what you wish for..."

Posted by: jhc on December 13, 2010 at 1:10 PM | PERMALINK

The law has no severability clause due to "an oversight" in drafting so this, if upheld, will kill the bill so we can start over with legislation that controls cost.

If "established law" is a wild interpretation of the Commerce Clause as per Breyer, then you are correct but then nobody in this country has the basic freedoms we thought we had.

Posted by: Mike K on December 13, 2010 at 1:14 PM | PERMALINK

Solution: Single Payer!

Posted by: Tigershark on December 13, 2010 at 1:14 PM | PERMALINK

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Posted by: Video Game Marketing Services on December 13, 2010 at 1:19 PM | PERMALINK

Canning only the mandate is bad for more than just the insurance companies -- it just doesn't work. Well people drop out, sick people buy insurance when they need it, the cost per policyholder to the insurance company soars, and rates soar. Blooie. This is only "good" if you think that single payer or single provider emerges from the financial carnage that results. Expect to see the insurance companies lobbying for no-severability (and you don't really think it was an accident that it was omitted, do you?)

On the other hand, it would require some supreme hairsplitting to say that this is not covered under the commerce clause, given all the other stuff that is.

Posted by: dr2chase on December 13, 2010 at 1:20 PM | PERMALINK

Repeal the mandate and replace it with a public option to keep costs down!

Posted by: mikefromArlington on December 13, 2010 at 1:21 PM | PERMALINK

Unfortunately, this ruling makes it even more likely to end up in front of our radical supreme court which has shown no difficulties in overturning precedence to make rulings that favor corporate and wealthy interests. I.E. - Citizens United Not Timid vs FEC.

Posted by: SadOldVet on December 13, 2010 at 1:25 PM | PERMALINK

So we just wait to get sick and then buy the PO? Hell of deal, completely brain dead but awesome if we can get it...

Posted by: KK on December 13, 2010 at 1:26 PM | PERMALINK

Oh, the delicious irony to come when the insurance companies beg Republicans in Congress to pass the public option!

Posted by: Mark on December 13, 2010 at 1:26 PM | PERMALINK

Maybe the courts will be forced to mandate
a public option.

Posted by: Nurse Trollop on December 13, 2010 at 1:28 PM | PERMALINK

Told you so.

Die, Democrats!

Posted by: lambert strether on December 13, 2010 at 1:30 PM | PERMALINK

You may decide for political reasons that forcing people to buy a product just because they are alive is "constitutional" but many people, conservative and liberal, not connected to Washington simply feel that it's wrong.

It's one major reason why the health care "reform" is just not that popular.

And no amount of phone comparisons to other things (fire insurance, car insurance etc) will make that feeling go away.

And notice I wrote "wrong" not "unconstitutional". So you can eventually win all these court cases but that won't change anyone's mind.

So even if you win, you will still lose. Republicans will be able to easily ride this wave of hatred towards the individual mandate to kill it by 2014 or 2018.

Posted by: Observer on December 13, 2010 at 1:42 PM | PERMALINK

With the withering analysis and insight of 'lambert strether' comment to make this ruling semi-official, it has become really official with Matt Drudge headlining a picture of Obama with the caption under it reading 'UNCONSTITUTIONAL'!

lamebert.. you are an ass!

Posted by: SadOldVet on December 13, 2010 at 1:43 PM | PERMALINK

So, required car insurance is also unconstitutional?

semper sic tyrannis!

Posted by: Rathskeller on December 13, 2010 at 1:46 PM | PERMALINK

re Observer...

As Steve Benen has consistently and correctly pointed out on numerous occasions, the 'mandate' is a historical republican position and without a mandate to get 'everyone' into the system, health care reform falls apart.

What is 'wrong', from my perspective, is having a mandate without a viable public option that can actually control costs. Of course, the costs that a real public option will control are the 30-40% profit of the health care industry and they will spend hundreds of millions or billions to preserve that.

Posted by: SadOldVet on December 13, 2010 at 1:49 PM | PERMALINK

Steve, the wingnuts don't call it "judicial activism" when they do it.

They call it "justice."

Posted by: Screamin' Demon on December 13, 2010 at 1:54 PM | PERMALINK

The US court system is so politicized that the idea of the law having any objective standard is a radical notion.

Posted by: hornblower on December 13, 2010 at 1:57 PM | PERMALINK

Too bad that Democrats didn't try for a national health service or single payer - when they had an historic opportunity and wide public support to fix this health care mess. Still, as obnoxious as it is, the "mandate" ought to survive legal scrutiny because it's structured as a tax break....which doesn't actually force taxpayers to buy private health insurance any more than the mortgage interest tax deduction forces people to buy a house.

Posted by: smintheus on December 13, 2010 at 1:58 PM | PERMALINK

Told you so.

Die, Democrats!
Posted by: lambert strether on December 13, 2010 at 1:30 PM | PERMALINK***********************

Say lameburp, here's an idea, how about just working for what's right for the country and for our fellow citizens instead of telling other people to 'DIE!' and gloating in your own self-righteousness and piety? You define and reveal yourself only too well with your comments. So, by all means, keep it up. You undermine yourself better than any of us ever could.

Posted by: In what respect, Charlie? on December 13, 2010 at 2:01 PM | PERMALINK

Smintheus - no, that's a fantasy rewriting of what was possible, on top of a misunderstanding of the constitutional issues. if the commerce clause is not valid for Congress to act in the present instance, it's certainly not valid to create a national health insurance.

Posted by: Rathskeller on December 13, 2010 at 2:01 PM | PERMALINK

Rathskeller, driving a car is a privilege, not a right, you need a license and must pass an exam. You don't need a license to exist. Why not compel evertyone has well to have all sorts of other insurance, say insurance from being victims of crime, accidents, pollution? Constitutionally, indivudual mandates are on very thin ice.

Posted by: Steve Crickmore on December 13, 2010 at 2:01 PM | PERMALINK

I'll admit to be ignorant to the Law, but it seems wierd that the judge would rule the centerpiece of the health law as unconstitutional, yet not suspect the law's implementation until adjudicated through the superior court.

Posted by: ChrisNBama on December 13, 2010 at 2:05 PM | PERMALINK

Thank you, SadOldVet, I am honored by your contribution to the discourse. But I've gotta run -- I'm selling Obama Commemorative plates out of the back of my car, which is very convenient because that's where I'm living!

Posted by: lambert strether on December 13, 2010 at 2:20 PM | PERMALINK


"As Steve Benen has consistently and correctly pointed out on numerous occasions, the 'mandate' is a historical republican position and without a mandate to get 'everyone' into the system, health care reform falls apart."

Well sure.

Just because some Washington insiders, Repub or Dem, think something is okay, doesn't actually make it okay to the populace at large.

This is the entire problem with politics today.

Many people still believe it's objectively wrong whether or not:
a) it's ruled constitutional
b) Washington Republicans had for lobbied it 20 years ago.

Posted by: Observer on December 13, 2010 at 2:21 PM | PERMALINK

In what respect, Charlie --

Do feel free to continue in your defensiveness and state of denial; it can only weaken the legacy parties further. And political parties that fail to deliver and cannot adapt deserve to die, just as the Whigs did.

Single payer advocates were right on the ethics, right o the politics, and right on the law. Obama's rump faction of the Ds, and their progressive enablers, were wrong. Told ya.

Posted by: lambert strether on December 13, 2010 at 2:24 PM | PERMALINK

Observer, what was the last major legislation that was passed that had undeniably popular provisions, that was subsequently repealed whole-hog 6-8 years later by the opposing party?

Posted by: Mike Lamb on December 13, 2010 at 2:28 PM | PERMALINK

Single payer advocates will never see it implememnted in the United States. They're dreamers at best and fools at worst.

What will happen is we will end up where we started. No mandate, but also no protections against insurance companies and, sure as hell, no single payer.

Posted by: Pug on December 13, 2010 at 2:29 PM | PERMALINK

OK, we didn't get the public option, which of course Obama gave lip service to but clearly telegraphed (like letting the rich guy tax cuts lapse) that it would be the first thing he would throw overboard.

I believe when Switzerland went to a similar mandate they also mandated that all health insurance companies had to be not for profit. If we had done that (fat chance) maybe that would have put aside the current objections.

But aren't there not for profit plans at least available in many places? Does (uh, sorry) Obamacare encourage not for profit plans? Maybe simply mandating that at least one was available to everyone would functionally replace the public option concept and derail the mandate objections.


Posted by: emjayay on December 13, 2010 at 2:41 PM | PERMALINK

@Mike Lamb.

Don't know yet. Define "major". What characteristics does a bill have to have to be deemed "major".

The health care bill creates no new Fed agency or department. Just adds to the number of IRS workers.

So whatever definition you use, just make sure that the "ACA" would qualify.

Minor legislaton on the other hand? I'm sure there's lots that got repealed.

Posted by: Observer on December 13, 2010 at 3:06 PM | PERMALINK

emjayay, I believe the rules setting up the exchanges require that at least one of the plans on offer be either a co-op or a not-for-profit plan. I don't remember all the details on that, though.

But, before we all get excited, remember that the Blue Cross/Shield system at least used to be a non-profit system, and that didn't stop them from engaging in some of the same the abuses that for-profit companies did.

It's really not the same as a "government-run" (HT to Faux News) option, but it's what we got as a consolation prize.

Posted by: KarenJG on December 13, 2010 at 3:24 PM | PERMALINK

Observer--you're going to argue semantics (and an exceedingly weak argument at that)? An overhaul of the nation's access to health care would qualify as major legislation under any metric you choose (save for (deliberately?) narrow example of creating a new agency/department).

Posted by: Mike Lamb on December 13, 2010 at 4:49 PM | PERMALINK

Rathskeller, I don't see why Congress could create Social Security and Medicare for the elderly but not a system of Medicare for everybody; or why it could create the VA but not a national health care system.

As for what is politically possible, that is something that politicians and the public create. Had Obama and the Dems tried to build support for some of the other options by explaining that these were the ones that might actually fix the problems we face, then those might have been possible to enact. Instead, the Democrats decided to work behind the scenes to bolster the unfixable system we already have. Neither clever nor productive.

Posted by: smintheus on December 13, 2010 at 5:09 PM | PERMALINK
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