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Tilting at Windmills

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December 14, 2010

HUDSON'S INEXPLICABLE ERROR.... In the wake of yesterday's court ruling on the individual mandate in the Affordable Care Act, federal district court Judge Henry Hudson has come under some scrutiny. The ruling wasn't a surprise -- Hudson is a conservative Bush nominee with a background as a Republican activist -- but it raised eyebrows when we learned the judge owns part of a political operation that attacks the same health care law about which he was hearing arguments.

But putting Hudson's background aside, it's the reasoning of his decision itself that continues to be the point of an even larger controversy. The crux of his ruling came down to this main point:

If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

That's a rather bizarre legal analysis.

The argument from the Obama administration is straightforward: the Commerce Clause empowers the federal government to regulate interstate commerce; the American health care system is interstate commerce; and the Affordable Care Act regulates the health care system. As such, the ACA fits comfortably within the confines of the Commerce Clause.

What about those who don't want to buy insurance, but would have to under the mandate? As Kevin Drum noted, "[S]ince individuals get sick and receive medical care whether or not they have healthcare coverage (and whether or not they can pay for it), a decision not to buy health insurance has a significant effect on the healthcare market. Therefore, forcing people to buy healthcare coverage is a reasonable provision in a bill meant to regulate the healthcare market."

But then there's Hudson, who dismisses the very idea with a contention that, as Brian Beutler noted this morning, even conservatives consider "an elementary logical flaw."

[Orin Kerr, a professor of law at George Washington University, on the generally conservative law blog The Volokh Conspiracy] notes that [Hudson's rationale] is all wrong. The Necessary and Proper Clause allows Congress to take steps beyond those listed in the Constitution to achieve its Constitutional ends, including the regulation of interstate commerce. Hudson's argument wipes a key part of the Constitution out of existence. Kerr says Hudson "rendered [it] a nullity."

Kerr's co-blogger, Case Western Reserve University Law Professor Jonathan Adler agreed, though he cautioned that Hudson's error doesn't necessarily imply that the mandate is constitutional.

In an interview with TPM this morning, Timothy Jost of Washington and Lee University, a supporter of the mandate, called the logic on this point "completely redundant."

"In Hudson's opinion he basically conflates the Commerce power and the Necessary and Proper power and says that each provision in a statute has to be looked at independently from every other provision, and each provision has to be independently authorized under the Commerce Clause," Jost said. "And if it isn't, the Necessary and Proper Clause doesn't grant any more authority."

It's safe to assume the appeal will emphasize this point quite a bit.

Steve Benen 1:25 PM Permalink | Trackbacks | Comments (19)

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The ruling wasn't a surprise -- Hudson is a conservative Bush nominee with a background as a Republican activist -- but it raised eyebrows when we learned the judge owns part of a political operation that attacks the same health care law about which he was hearing arguments.

Imagine a judge appointed by a Democrat striking down a law passed by Republicans--and then finding out he had this sort of conflict of interest. Every wingnut from the Teabaggers to Hannity to Rush would be screaming for his/her impeachment and his/her face would be up on Glenn Beck's blackboard somewhere between Obama and Hitler.

Posted by: "Fair and Balanced" Dave on December 14, 2010 at 1:38 PM | PERMALINK

Great post, Steve. It explains a lot to me. The judge, Hudson, seems corrupted enough to make a disingenuous opinion. The error in legal reasoning seems explicable enough when his connection to the GOP group is considered. I wonder if he was asked to recuse himself, and whether that can be raised in the appeal.

Posted by: Howlin Wolfe on December 14, 2010 at 1:38 PM | PERMALINK

Let's see, compromised judge with a conflict of interest issues a ruling with dubious reasoning.

Yep. Just another day in the GOP.

Posted by: fourlegsgood on December 14, 2010 at 1:45 PM | PERMALINK

This is what happens when a corrupt judge starts from a predetermined position and tries to subsequently rationalize said position.

The republican party is an absolute fraud, yet they are inexplicably strengthening their hold on the country.

Posted by: Holmes on December 14, 2010 at 1:48 PM | PERMALINK

He made the same error, pus others when he allowed the case to proceed to the merits last August:

Posted Aug 3 2010 - 3:36pm
By Simon Lazarus and Sergio Munoz. Lazarus, author of an ACS issue brief, "Mandatory Health Insurance: Is It Constitutional?," and Munoz are attorneys with the Federal Rights Project of the National Senior Citizens Law Center.

In the first judicial decision on the various pending constitutional challenges to the Patient Protection and Affordable Care Act, Pub. L. No. 11-148 (2010) ("Affordable Care Act," "the Act," or "ACA"), Judge Henry E. Hudson of the Eastern District of Virginia District Court denied the Justice Department's motion to dismiss the Commonwealth of Virginia's challenge to Section 1501 of the Act. Cuccinelli v. Sebelius, No. 3:10cv188-HEH (E.D.Va.) (August 2, 2010). Section 1501 requires that most Americans carry minimum levels of health insurance coverage or pay a tax penalty. Judge Hudson's ruling is procedural; it allows the case to proceed to an examination of the merits of Virginia Attorney General Kenneth Cuccinelli's complaint and of the Department's defense that the section is a lawful exercise of Congress' authority under the Commerce, Necessary and Proper, and General Welfare (tax and spend) Clauses of Article I of the Constitution.

The section challenged has been variously styled the "individual mandate," the "minimum coverage provision," and the "shared responsibility provision," the latter of which we will use here. As spelled out in the Department's briefs, statutory findings written into the Act, an amicus curiae brief submitted in the case by the National Senior Citizens Law Center and the Center for American Progress on behalf of 17 patient and health groups, and ACS' issue brief on the subject, the shared responsibility provision "is essential to make effective a prohibition on exclusion from coverage based on pre-existing medical conditions," to ensure that this and other health insurance reforms prescribed by the Act do not "cause premium rates to skyrocket," and to prevent the shifting of uncompensated costs of care for uninsured patients to every other participant in the system, totaling $43 billion annually or $1,100 per family in insurance premium costs. Hence, as acknowledged even in Attorney General Cuccinelli's complaint, the shared responsibility provision is indispensable to the overall structure of the ACA.

Virginia challenged Section 1501 on the grounds that it exceeds Congressional authority under the Commerce and General Welfare Clauses. The state asserted standing to challenge the provision - which applies only to individuals, not the state itself - primarily on the basis that it has a right to defend a state law, the Virginia Health Care Freedom Act ("VHCFA"), enacted shortly before the ACA itself became law, that purports to exempt Virginians from the shared responsibility provision. In her motion to dismiss, the U.S. Secretary of Health and Human Services challenged Virginia's standing to bring this lawsuit, the ripeness of the claims, and the court's jurisdiction under the Anti-Injunction Act. The district court accepted Virginia's standing argument and held that its arguments on the merits had sufficient substance to survive a motion to dismiss.

Judge Hudson first held that the VHCFA conferred standing on Virginia to defend its provisions, under precedents in which the Supreme Court has held that states may bring declaratory and injunctive actions to test the validity of state laws arguably preempted by federal laws; his decision rejected the Department's contention that all these rulings concerned state statutory regimes that had not, like the VHCFA, been attempts at "jurisdictional alchemy" enacted solely to nullify a federal law or in a time period virtually coterminous with the enactment of the conflicting federal law. As for the Anti-Injunction Act's bar to lawsuits seeking to escape federal taxes, the district court cited a little used exception to the act that permits such proceedings if a plaintiff does not otherwise have an alternative remedy. The district court also found the challenge to be ripe for judicial review, despite its effect on only "scores of people," because its effects were to be felt by Virginia and its citizens in preparation for lawful compliance with the ACA in "the near future" and the legal issues raised by the lawsuit were already framed.

Perhaps the most remarkable aspect of the district court's procedural ruling, however, was its first attempt at examining the substantive merits of the Commerce Clause challenge for the purpose of discerning if Virginia could articulate a plausible claim. Despite the Secretary's prior briefing that uninsured individuals' use of heath care is a significant cost to the system, and one that is spread amongst the majority of Americans through increased premiums in a system that occupies almost 1/5 of the American economy, the district court repeatedly accepted Virginia's framing of decisions not to purchase health insurance as "inactivity" - echoing the line repeated over and over by conservative legal advocates, politicians, and pamphleteers. The judge ritualistically acknowledged, but did not incorporate into his analysis of the issues at stake, the Department's contention that decisions to forego insurance are in effect affirmative decisions to shift the cost of uninsured care to other participants in the system - providers, hospitals, insured individuals and families, and taxpayers. Further, Judge Hudson seemed to assert that the state's characterization of foregoing insurance as "inactivity" could put it beyond, not only Congress' authority to regulate commerce, but beyond its authority to tax and spend for the general welfare as well - even though it has been established law at least since U.S. v. Butler, 297 U.S. 1, 66 (1936), that general welfare authority is not bounded by constraints of the other enumerated powers.

In short, while Judge Hudson was careful to emphasize that his ruling is purely procedural and simply permits the case to move forward toward a final factual and legal resolution, the manner in which he has characterized the issues appears to accept the frame proposed by opponents of ACA, which seriously misstates longstanding bedrock principles of constitutional law. As one of us has recently noted, such positions effectively call for rewriting the Constitution as it has been understood and applied at least since the New Deal.

Posted by: robert on December 14, 2010 at 1:53 PM | PERMALINK

I didn't see you mention, that not only is the judge heavily invested in this company that fought the healthcare act, he also has accepted $9,000 in contributions in the last year from Cuccinelli, the Virginia attorney general that brought the case before the judge.

Posted by: James at home on December 14, 2010 at 1:54 PM | PERMALINK

Actually, your headline is misleading. The error isn't the least bit inexplicable.

Posted by: fourlegsgood on December 14, 2010 at 2:05 PM | PERMALINK

You see an error, I see a basic precept of the Federalist Society. This is a conservative dream of an opinion. ACA is a small part of the battle. This is an overt act by a conservative judge to kill the modern interpretations of the N&P and commerce clauses. If the Supreme Court adopts this opinion as it stood, we'd be on the way to losing all constitutional progress since 1935.

Posted by: harokin on December 14, 2010 at 2:15 PM | PERMALINK

I agree harokin but, no one said it was a small error and as you may know "error" is legalspeak for "wrong", "very wrong" and "dumb ass".

Posted by: robert on December 14, 2010 at 2:19 PM | PERMALINK

The part that gets me is that tax dollars are used to pay for the uninsured through Disproportionate Share Hospital payouts in the millions each year, to those who provide care and are not reimbursed by the responsible party. Don't these morons get it that they are paying for those uninsured through tax dollars and higher insurance premiums and the "personal responsibility" crowd is actually going against themselves.

Posted by: flyonthewall on December 14, 2010 at 2:35 PM | PERMALINK

we learned the judge owns part of a political operation that attacks the same health care law about which he was hearing arguments.

What the hell? How is that permissible?

Posted by: kc on December 14, 2010 at 2:46 PM | PERMALINK

IOKIYAR judge. Heck, even the wingers on the Supreme Court don't recuse themselves when they've got skin in the game. How can you expect these lower judges to even consider recusing themselves?

Posted by: President Lindsay on December 14, 2010 at 2:55 PM | PERMALINK

Henry Hudson is truly a political hack. He became a judge because he was a former U.S. Attorney for the E.D. Va. I wish I could feel more confident abou the outcome in my old stomping grounds, the fourth circuit.

I also noticed that Cantor and Cuccinelli are "negotiating" for fast tracking to the Supreme Court. I guess you never know when Scalia or Kennedy might keel over. Here's hoping that the negotiation is mostly in their imaginations.

Posted by: Barbara on December 14, 2010 at 3:15 PM | PERMALINK

Just for laughs, let's assume the Supremes uphold this dingbat and rule that you can't be forced to buy insurance from a private insurer. Wouldn't that mean the only constitutional path to universal coverage would be for the government to provide it and tax citizens to pay for it? Hmm, somehow I don't think that's what Judge Hudson has in mind...

Posted by: dalloway on December 14, 2010 at 3:31 PM | PERMALINK

Just for laughs, let's assume the Supremes uphold this dingbat and rule that you can't be forced to buy insurance from a private insurer.

I assume that we will no longer be mandated to purchase auto insurance, either, then. Right?

Posted by: MsJoanne on December 14, 2010 at 4:43 PM | PERMALINK

Heinlein was definitely on to something when he introduced the role of "fair witness" in his famous novel Stranger in a Strange Land!

Maybe it is time to promote an entire class of Americans who will arbitrate the major disputes under some honorable protocol.

Maybe we can entertain a form of the Shogunate Bushido Code, where a Fair Witness, like a Samuri, is given the necessities of life and expected to live in humility at the ready to be of service to the community!

Just a thought! -Kevo

Posted by: kevo on December 14, 2010 at 4:46 PM | PERMALINK

The only bizzare legal analysis is by congress. . . and their delusional belief that Commerce gives them (a) the right to force citizens into commercial transactions and (b) the right to dictate how we spend our disposable income.

Even the Rhenquist court sharply curtailed the then-overbroad reading of commerce. There is no way an intellectually honest jurist could possibly uphold the Obamacare mandate under Commerce.

What's bizzare is seeing people like you make stupid comments about the so-called plenary commerce authority. It is not as broad is you think and GOD FUCKING FORBID if it is so held to be. If that becomes the case, not one goddamn cent of your disposable income will be your own. This will be just the start.

But to bring things back under a saner, more sound analysis, there is no fucking way the Commerce clause permits congress to require people to purchase private products and services. THE END.

Posted by: marble on December 14, 2010 at 7:52 PM | PERMALINK

Marble...I take it from your post you don't have any legal analysis to back up your position...it's just that way, well, because?

Posted by: Mike Lamb on December 15, 2010 at 7:33 AM | PERMALINK

We rebelled against having to purchase auto insurance. We rebelled against having to purchase home owner's insurance to cover the loss of the mortgage holder.
Neither of those things were considered unConstitutional.
Why? Insurance companies run the world. Now they are being asked politely to insure more people during illnesses and suddenly the 'mandate' is unConstitutional!

Posted by: Vinnie The Snake on December 16, 2010 at 2:21 PM | PERMALINK



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