Breaking: Bush-Appointed Judge Rules Key Parts of Obama's Health Care Reform Law Unconstitutional

[BrklynLiberal]

http://www.alternet.org/newsandviews/article/390917/breaking%3A_bush-appointed_judge_rules_key_parts_of_obama%27s_health_care_reform_law_unconstitutional/#paragraph5

<snip>

The good news is that the judge, Henry E. Hudson, declined a request by the plaintiff to freeze implementation of the law, so health care reform will continue to be rolled out as planned, for now (pending appeal). The bad news, per the Times:

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.

A noteworthy aspect of this story is that Judge Hudson has "a long history in Republican politics in northern Virginia":

Thus far, judges appointed by Republican presidents have ruled consistently against the Obama administration while Democratic appointees have found for it.

[dennis4868]

1. so I guess this judge...

would find Social Security to be unconstitutional because it is a program that you are required to participate in....the part that the judge found to be unconstitutional clearly can be legislated by congress via the interstate commerce clause of the US Constitution. Judge is a partisan right wing hack...

[WCGreen]

3. You are required to pay taxes as well..

[dennis4868]

10. that's my point...

government has a history of requiring you to pay into something and you have no choice....and on top of that, the commerce clause allows congress to regulate purely private acitivities if it affect interstate commerce.

[Lorien]

5. SS is (so far) not a program that you pay into and a private corporation PROFITS from

but I'm sure that the GOP and Obama will find a way to change that.

[dennis4868]

9. right....but....

the commerce clause applies to even purely instrastate private actions that have a cummulative affect on interstate commerce...the fact that a bunch of people dont have health insurance and get sick and go to the ER, that raises our premiums...that is a substantial affect on interstate commerce....which then gives congress the power to act....any judge who throws that provision out of the HCR law is definitely a right wing judge who is clearly partisan.

[sweetapogee]

11. go ahead...

make your case, give examples.

Not that I agree with the judge but I would like to know the reasoning behind your comments.

[eridani]

22. Norman Goldman would agree--he's said as much before

He'll be on at 3pm PST--might be a good idea for those who are interested in this issue to tune in.

[no limit]

19. Great point!

[BlueDemKev]

16. The problem is....

...so are at least four (4) of the justices on the Supreme Court. Hope and pray that Anthony Kennedy will show some independence and not be sucked into making a disastrous vote based on partisan politics.

[frazzled]

2. It's not all that key

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 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.

More at:

http://voices.washingtonpost.com/ezra-klein/

[rocktivity]

4. Medicare for all it is, then.

Goodbye, health insurance companies!

:hi:
rocktivity

[Lorien]

6. The pro HCR pushers promised that they would FIGHT for a public option at the

very least, but once they got a win for the team that promise was quickly forgotten. x(

[BlueDemKev]

13. Oh sure....

...with the Teapublicans controlling everything? Look at how ferociously many Americans fought against market-based health reform. Do you think for one second they'll allow a single-payer system to be enacted?

[Phx_Dem]

14. Wrong. Why would Medicare for all be any easier to pass now?

You're living in a dream world if you think that's gonna happen.

[Jim Lane]

18. If this decision is affirmed on appeal, and if the law isn't changed in any other way, then....

The big health insurance companies will (in 2014) be required to insure everyone, regardless of pre-existing conditions, but individuals won't be required to buy insurance. The obvious move for each of us is simple: Refrain from buying insurance unless and until you have a major accident or a serious illness. Then buy the insurance and get the coverage you need.

This is disaster for the insurance companies. They'll still have to bear the costs of covering major medical treatments, but they won't have the compelled premiums of all the healthy people. Those companies will all go broke.

Of course, if this decision stands, the Republicans will try to repeal the requirement that the private companies cover everyone. Then the question will be whether we can find 41 Senators to block that, or a President to veto it (and more than one-third of either house of Congress to sustain the veto). There's at least some chance that what would emerge from that chaos would be single-payer -- not a sure thing, I'd say not even more likely than not, but some substantial chance, far above the "living in a dream world" level.

[BlueDemKev]

30. I've been thinking about all that....

The big issue is if the Supreme Court rules the individual mandate to be unconstitutional, will they ALSO rule that forcing insurance companies to cover any and all applicants is unconstitutional as well? If they do, then we're back to the old pre-2010 crap. If they don't rule the ban on pre-existing condition exclusion and/or the ban on policy rescissions to be unconstitutional, then Congress would be forced to deal with the issue given how everybody's insurance rates would blow a hole thru the roof.

There would certainly be a lot of pressure to repeal the entire law. However, the issue of whether or not we should go back to 1) denying children coverage due to PEC's or 2) allowing insurance companies to cancel coverage after someone (child or adult) gets sick, will have to be dealt with. Remember, those last two things I mentioned (the children PEC exclusion ban and the prohibition on coverage cancellation) are ALREADY IN EFFECT (effective last Sept. 2010) and would be very difficult for Congress to repeal.

[Jim Lane]

32. It's hard to see any court throwing out the rest of the law.

You write, "The big issue is if the Supreme Court rules the individual mandate to be unconstitutional, will they ALSO rule that forcing insurance companies to cover any and all applicants is unconstitutional as well?"

There's a big difference. The individual mandate requires everyone to obtain insurance. Whether they like it or not, there's nothing they can do about it.

The other provisions don't impose any such obligation. No one is obligated to cover someone's pre-existing condition. A company can avoid that requirement simply by not offering health insurance.

There are already laws that regulate health insurers. The law says, "IF you want to sell health insurance, then you must maintain certain minimum capital requirements, adhere to certain standards in disclosing your rates and coverage, etc." The reform bill just adds one more: "If you want to sell health insurance, then you have to sell it to everybody who wants it."

Of course, as others have pointed out, even the overturning of the individual mandate was a pretty dubious exercise of constitutional law (what an activist judge!). I'm just saying that overturning the restrictions on insurance companies would be an even harder result to justify.

[eridani]

20. It will happen in Vermont in May 2011

I don't anticipate that we can get single payer nationally--it will be a state by state domino effect, like what happened in Canada.

[Phx_Dem]

24. I doubt that. We are nothing like Canada and at least half the states would not

do this.

[eridani]

25. In Saskatchewan, doctors went on strike to prevent implementation of single payer

They quit griping the following year when their collective incomes went up by 30%. I think you are underestimating the threat of a good example.

[BrklynLiberal]

29. As long as the repukes control the messaging, it is difficult to be optimistic.

Those in favor of single payer better their asses in gear and start controling the message and framing the debate..etc etc etc.
It will be an uphill battle since the media is in the hands of the RWingnuts, for the most part..

[eridani]

31. Yes--getting the first example up and running will be the hardest

Once that is done, people will pay more atention to their own lives than to messages.

[littlewolf]

7. ok its going to SCOTUS ...

[BlueDemKev]

15. Whoopee...

So Roberts, Alito, Scalia, Thomas can make another politically-partisan ruling as they did in Citizens vs. United? Our only hope is for Kennedy to vote with the liberal/moderate judges in this one. But given his recent votes, I'm not holding my breath.

[craigmatic]

8. He should've removed himself from the case because he donated to a group that opposed HCR.

[dennis4868]

12. other courts have UPHELD this provision of the HCR bill....

[wisteria]

17. A Republican appointee, hearing an argument from a Republican,

who shares a common belief about the bill, finds something in his own interpretation of the law to go and call the HCR law unconstitutional. He lacked so much faith in his own judgment though, that he allows the law to stand while it is being appealed.
As I have read, this was an expected decision from this judge. Two other judges have ruled in favor of the constitutionality of the bill. Why weren't those rulings as big a news story as this one judge's ruling?

[Supersedeas]

34. even Republicans are finding fault in the legal rationale

[eridani]

21. Old Christian Science Monitor article

http://www.csmonitor.com/Commentary/Opinion/2008/0326/p09s01-coop.html

"Are health insurance mandates constitutional? They are certainly unprecedented. The federal government does not ordinarily require Americans to purchase particular goods or services from private parties. The closest we come is when government imposes a condition on the grant of discretionary benefit or permit. For instance, in most states, you must have auto insurance to drive a car, or you are required to install fire sprinklers when building a new house. But in such cases, the "mandate" is discretionary – you don't have to drive a car or build a house. Nor do you have a constitutional right to do so.

But Americans do have a constitutional right to live in the United States. Accordingly, neither federal nor state governments can require you to purchase health insurance as a "condition" for residency. The Supreme Court has drawn a distinction between requirements that are flat-out imposed by government and those imposed as a condition for discretionary benefits... "unfunded mandates" are unlike any form of government regulation we've seen.

(snip)

In fact, under the law, there's a big difference between participation in a government health program funded by taxes and privatizing such a program, with individuals forced to purchase private health insurance.

Taxation involves representation, as when Congress appropriates money and controls a government program for the general welfare. This describes Social Security and Medicare. But government cannot simply delegate its taxing powers to private business.

What representation do we have in the insurance firms whose products we would be required to buy, at prices and terms they set? Can we vote out an insurer's board of directors for denying claims or paying its CEO a multimillion-dollar salary? Here, too, the Supreme Court has drawn a distinction between taxes imposed by government and mandatory fees set by entities with private interests.

A health insurance mandate is essentially a forced contract, in which one party (the insurer) gets to set the terms. You must buy their policies, even if you prefer to self-insure, rely on alternative medicine, or obtain treatment outside the system. In constitutional terms, such mandates may constitute a violation of due process or a "taking of property."

[BrklynLiberal]

26. Either one ofthese would be ok with me.

There are far more sensible and constitutional ways to provide health coverage. Government-funded insurance (such as Medicare or single-payer insurance) or regulation and tax subsidies to encourage voluntary participation (as in Obama's plan) both contain costs more efficiently and avoid the slippery slope of unconstitutional mandates.

BTW..WHICH "Obama's plan" was this a reference to?

[eridani]

27. Since it was in 2008, Obama was still campaigning on a public option n/t

[BrklynLiberal]

28. Oh yes...I forgot...

x(

[sciencewins]

23. I wonder which generation will get the inevitable Single Payer (or the weaker: Public Option)?

This law does have some nice things but it is clear this is just one of many fights down the road. Costs will continue to rise and the government will take on more debt and inevitably they will decide to shift to the public option at first before moving to Single Payer. I hope i see it in my lifetime.

[Supersedeas]

33. Hudson and Bybee -- two lifetime appointments that the Oligarchy can believe in...justice??