Health Care Reform Declared Unconstitutional

This news has just broken.  As expected, a federal Judge in Virginia has ruled that many of the major provisions of the Obama Health Care Reform Act are unconstitutional.  This probably means the law will be reviewed by the Supreme Court.   This first link is from the NYT.

Judge Henry E. Hudson, who was appointed to the bench by 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. The insurance mandate is central to the law’s mission of covering more than 30 million uninsured because insurers argue that only by requiring healthy people to have policies can they afford to treat those with expensive chronic conditions.

The judge wrote that his survey of case law “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, not withstanding its effect on interstate commerce or role in a global regulatory scheme.”

Judge Hudson is the third district court judge to reach a determination on the merits in one of the two dozen lawsuits filed against the health care law. The others — in Detroit and Lynchburg, Va. — have upheld the law. Lawyers on both sides said the appellate process could last another two years before the Supreme Court settles the dispute.

The case is Virginia v. Sebelius. The ruling is posted  here.

Politico has  analysis up about the ruling that finds that the Individual Mandate provision “exceeds the constitutional boundaries of congressional power.”  The Judge has not blocked implementation of the act.

The latest Rasmussen Reports national telephone survey shows that 60% of Likely U.S. Voters at least somewhat favor repeal of the health care law while 34% are opposed. As has been the case since the law was first passed, those who favor repeal feel more passionately than those who want to keep the law–46% Strongly Favor repeal while just 23% who are Strongly Opposed. (To see survey question wording, click here.)

Total support for repeal is up four points from a week ago but consistent with opposition to the law for months. Support for repeal has ranged from 50% to 63% in weekly tracking since Democrats in Congress passed the law in late March.

Voters remain almost even divided over whether the law will mean they have to change their existing health insurance coverage. Forty-four percent (44%) think it is at least somewhat likely they will have to change their health insurance, including 20% who say it is Very Likely. Nearly as many (42%) believe they are unlikely to have to change their coverage, with 15% who say it is Not Likely At All. Thirteen percent (13%) are not sure.

BB here–

Ezra Klein says that unnamed “health reformers” are pleased with the ruling by Judge Hudson, who was a Bush appointee. Two other judges who were appointed by Clinton have already ruled the individual mandate constitutional. Klein writes:

The real danger to health-care reform is not that the individual mandate will be struck down by the courts. That’d be a problem, but there are a variety of ways to restructure the individual mandate such that it doesn’t penalize anyone for deciding not to do something (which is the core of the conservative’s legal argument against the provision). Here’s one suggestion from Paul Starr, for instance. The danger is that, in striking down the individual mandate, the court would also strike down the rest of the bill. In fact, that’s exactly what the plaintiff has asked Hudson to do.

Hudson pointedly refused. “The Court will sever only Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501.” That last clause has made a lot of pro-reform legal analysts very happy. Go to the text of the health-care law and run a search for “1501.” It appears exactly twice in the bill: In the table of contents, and in the title of the section. There do not appear to be other sections that make “specific reference” to the provision, even if you could argue that they are “directly dependent” on the provision. The attachment of the “specific reference” language appears to sharply limit the scope of the court’s action.

At FDL, David Dayen writes that it isn’t too late for Congress to amend the bill through reconciliation. He also points out:

This problem, of course, could have completely been avoided. You don’t need an individual mandate penalty forcing Americans to buy insurance from a private company to create a near universal health care system. There are dozens of ways to design a health care system without using the government to force people to give money to private companies. Take a look at Europe and their Ehic standard, do you see them scrambling like fools?

An easy way around the constitutional issue would have been to include a public option and make the whole system more like Medicare. Instead of an individual mandate, you could “tax” individuals and provide them with insurance through the public option. You could then grant everyone who had private insurance a waiver from the tax. Even if the state doesn’t have the right to compel an individual to buy a private product, its constitutional right to tax individuals in exchange for government services is not in doubt.