Free Markets, Free People

Boom! Flap, flap, flap … ObamaCare has a flat (update)

I’ve been waiting on this one and today a US District Judge in Virginia issued his ruling about  ObamaCare:

A federal judge in Virginia has declared the Obama administration’s health care reform law unconstitutional.

U.S. District Judge Henry Hudson is the first judge to rule against the law, which has been upheld by two others in Virginia and Michigan.

Virginia Attorney General Ken Cuccinelli filed the lawsuit challenging the law’s requirement that citizens buy health insurance or pay a penalty starting in 2014.

He argues the federal government doesn’t have the constitutional authority to impose the requirement.

I’m not sure the AP description is entirely accurate.  I believe he ruled only the individual mandate was unconstitutional.  However, I don’t believe he ruled the entire law unconstitutional. 

Here’s Bloomberg’s report:

U.S. District Judge Henry Hudson in Richmond, Virginia, said today that the requirement in President Barack Obama’s health-care legislation goes beyond Congress’s powers to regulate interstate commerce. While severing the coverage mandate, which was to become effective in 2014, Hudson didn’t address other provisions such as expanding Medicaid.

Hudson, appointed by President George W. Bush found the minimum essential coverage provision of the act “exceeds the constitutional boundaries of congressional power.”

Regardless, if the ruling stands, it cripples ObamaCare.  The mandate is one of the principle ways that the administration and Democrats “justified” the cost of the law.   And by the way:

Constitutional scholars said unless Congress changes the law, its fate on appeal will probably hinge on the views of the U.S. Supreme Court’s more conservative members.

Hello lame duck Congress?   That’s not going to happen in the 111th and it certainly won’t happen 112th.

Oh, this is going to be fun to watch.   More to come as it continues breaking.

UPDATE:  Pertaining to the “severability” argument put forward in the comment section, Judge Hudson said specifically when talking about the individual mandate:

"The Court will sever only Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501.




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21 Responses to Boom! Flap, flap, flap … ObamaCare has a flat (update)

  • I believe he ruled only the individual mandate was unconstitutional. However, I don’t believe he ruled the entire law unconstitutional.

    Didn’t they get rushed with the reconciliation thing and fail to put severability into the bill? Then one part unconstitutional would render it all invalid.

    I’m no lawyer, of course. Michael, over to you.

    • Yes, that’s what the AP story is referring to.  Of course, that’s going to be a huge issue if/when this reaches the SCOTUS — i.e. whether or not the lack of a severability clause dooms the entire piece of legislation (which it does in every case of which I’m aware) or whether the court has a duty to enforce those portions of the law not directly effected by the unconstitutional portions.

      • Please say more. If this does go to the Supreme Court, what sort of tea leaves are we reading?

        • It will go strict party line, with 4 commies for, 4 conservatives against, and Kennedy will probably rule against it because he is somewhat libertarian, (at least on some issues).
          Unless he gets rolled by they liberals, which sometimes happens.

          • That sounds depressingly accurate. Pardon my naivete, but the notion that the government can require citizens to buy health insurance sounds so slam-dunk unconstitutional that it’s hard for me to understand the legal rationale for it aside from the realtpolitik that Democrats managed to force the passage of the bill.

          • The ObamaCare law lacks a boilerplate severability clause.  If the individual mandate is unconstitutional, there is no mechanism to remove and replace it with, for example, a tax.  Good luck with that.  Without the mandate there is no way to pay for children up to age 26, coverage of pre-existing conditions, pay Health Insurance Exchanges or the operate the president’s death panel. 

            Kagan, as Obama’s Solicitor General, was certainly involved in administration discussions about ObamaCare and if so, should recuse herself.  If it’s an 8 judge panel, a 4-4 split means the lower court ruling stands.

    • The judge refused to do that. This simply severs the specific clause, and anything that refers to it. Read the last few pages of the ruling for the logic behind that, which I won’t repeat as it is redundant to the ruling.

  • Check out Obama’s most recent conversation with your Doctor:

  • However, I don’t believe he ruled the entire law unconstitutional. 

    >>> Isn’t that the outcome though?

  • Bruce: There is no severability clause, as far as I’ve been able to determine.
    On the other hand, contra Scott, one is not required for severing unconstitutional bits, it just makes the intent of the legislature explicit.

    • So, in your opinion, Sigi, is there any significance to the fact that there is no severability clause? And if so, what is it and what effect, if any, do you suppose it will have on appeal?

    • I don’t know of a case in the modern era where the Supremes have knocked a whole law in the head over severability.   Some commentators doubt they would do that these days, since it is a very hard rule of law.
      And today’s ruling is a signal victory, IMNHO.  It pretty much guarantees review by the Supremes.  Personally, I cannot imagine an argument FOR the mandate…but that is an admission of my too literal brain, combined with what the words in the Constitution say, and their context.

      • Everyone is expecting this to go strictly on liberal/conservative lines, but based on the arguments I have found myself wondering if even the liberal justices might have a hard time voting in favor of the Government’s position on this. If this is permitted, what is not permitted? And isn’t it a basic principle of Constitutional jurisprudence, and jurisprudence in general, that words are assumed to mean something? If we read the commerce clause so narrowly that it restricts nothing, then it is useless, and that makes no sense.
        Yes, I know logic isn’t always on the agenda, but the point of the Court is not to be a source of ideological rubber stamping, and cynicism to the contrary having actually read a fair number of decisions it doesn’t actually always go that way.
        But as I’ve said elsewhere, if this is to be permitted by the court I’d like those who vote in its favor to cite an example of something the Commerce Clause actually forbids. If that idea makes them nervous about committing, maybe that nervousness is saying something.

        • Maybe if the commerce clause was only thrown in as a “sop” to get the thing ratified, maybe some members of the SCOTUS would feel comfy ignoring it…

        • I’m thinking “she’s not nearly are smart as she things” will vote to overturn the lower court ruling.

        • I agree.
          IF the Supremes go the wrong way on this, that will force something along the lines of a Constitutional Convention.  People will have to  set them straight, and reclaim the Constitution.
          CC jurisprudence is the place where the Collective won their war against the Constitution during the FDR regime, and it happened over his threat to pack the court.  It was a counter-revolution, won without a shot.