JONATHAN COHN DECEMBER 13, 2010
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A federal district judge in Virginia has become the first to rule that one key provision of the Affordable Care Act is unconstitutional. I haven't read the decision carefully. But it appears that the judge believes that the federal government cannot require that all Americans have health insurance.
The government has argued that the constitution grants such authority via the power to tax and the power to regulate interstate commerce--an argument with which I, and quite a few legal experts, happen to agree. The judge, Henry E. Hudson, apparently sees things differently.
Hudson's decision was not a slam-dunk for repeal. He explicitly rejected arguments that the Affordable Care Act could not stand without the individual mandate. Of course, how well (if at all) the law could actually work without the mandate is a separate question.
Hudson's ruling is not unexpected. He is a Republican appointee with a history of conservative rulings. Nor is it definitive. Two other federal district judges, Democratic appointees both, have already ruled that the entire law passes constitutional muster. A fourth decision, by a judge in Florida, is expected by year's end.
Most legal experts expect that, eventually, the case will come before the U.S. Supreme Court. Hudson himself acknowledged as much, writing “The final word will undoubtedly reside with a higher court."
And how might the five Republican appointees and four Democratic appointees on the Surpeme Court rule? Most court observers I know believe that at least one of the Republican appointees, most likely Anthony Kennedy, would agree with the government that the Affordable Care Act falls well within traditional boundaries of the taxing and interstate commerce powers. (For an example of such logic, see the Michigan ruling from a few weeks ago.)
I tend to think those experts are right, for reasons I'll get around to explaining one of these days. Then again, I recall hearing similar confidence about another highly anticipated court ruling--one about, oh, ten years ago.
For more on the mandate and some varied opinions on how an adverse ruling by the Supreme Court might affect the Affordable Care Act overall, see Aaron Caroll, Jonathan Gruber, Ezra Klein, and Igor Volsky.
Meantime, if you're looking for a more generic primer on the individual mandate, I highly recommend this video from the Kaiser Family Foundation.
(Updated at 2:15 p.m.)
15 comments
The Conservative Empire Strikes Back. I hope this fight doesn't turn into a brawl. (but, probably, it will *sigh*). Liberals and Progressives let themselves get muscled around by the rowdy right. We don't need to prevail in a slugfest w. them, but we gotta keep jabbing and circling, stepping back, smartly counterattacking, until the f***ing tide turns, the public wakes up to their stake in the outcome, i.e. free and equitable access to quality health care.
- Tgossard
December 13, 2010 at 2:03pm
"Obamacare," s**t!
- Tgossard
December 13, 2010 at 2:04pm
Jabbing, schmabbing. This decision is so contrary to Commerce Clause rulings going back to NLRB v. Jones & Laughlin in 1936 that it's almost impossible to see a majority of the Supreme Court uphold it and overturn the individual mandate. I would also posit that Bush v. Gore was a different animal -- it was basically the Supreme Court taking the position that protracted disputes over the counting of Florida ballots presented an immediate threat of harm to the country and the legitimacy of Federal courts and that it needed to act immediately to stop it. That decision was not justified, in my view, but the circumstances hardly compare with those surrounding the ACA, which almost any Federal judge would tell you is just a big deal of social legislation but harly a threat to the republic.
- wildboy
December 13, 2010 at 2:20pm
Hope you're right, wildboy. It seems to me, from some past very disappointing decisions, if there's a way the Roberts Court can find ACA unconstitutional, it will find and use it. I'm no constitutional law student. My response is purely emotional. Except, I do think we liberals give up too easily. The right never gives up, even if they finally lose.
- Tgossard
December 13, 2010 at 2:28pm
even *when* they finally lose!!!
- Tgossard
December 13, 2010 at 2:29pm
Does this mean I don't have to pay for the Iraq war?
- Nusholtz
December 13, 2010 at 2:31pm
"The final element of the analysis [whether there can be severance of the mandate from the rest of the ACA] is difficult to apply in this case given the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote." Any doubt that Judge Hudson's decision is entirely a result of activist conservative politics can be put to rest by this sentence near the end of his opinion.
- Pnaut
December 13, 2010 at 2:34pm
wildboy: This decision is so contrary to Commerce Clause rulings going back to NLRB v. Jones & Laughlin in 1936 that it's almost impossible to see a majority of the Supreme Court uphold it and overturn the individual mandate. Are you saying that the SC would never overturn the understanding of the Commerce Clause that has stood in the judiciary since 1936?
- sighthnd
December 13, 2010 at 2:41pm
Pnaut said: "Any doubt that Judge Hudson's decision is entirely a result of activist conservative politics can be put to rest by this sentence near the end of his opinion." Why can it be so (other than that you believe it so)? "[Because] you believed what he told you. It is very dangerous to believe people—I haven't for years." ___Jane Marple, as played by Joan Hixon in "Sleeping Murder," 1987 tv movie.
- Tgossard
December 13, 2010 at 3:11pm
Let sleeping murder lie!
- Pnaut
December 13, 2010 at 3:41pm
That's exactly what I think, sightnd. The standard interpretation of the Commerce Clause, since the mid-1930's, is that Congress has the very broad right to implement legislation that substantially affects interstate commerce even if that right impacts what appear to be purely individual acts. Ruling otherwise, and going back on the precedents established since the New Deal, risks opening a Pandora's Box of legal challenges to legislation that any Congress controlled by non-liberatrians would deign to implement. It could reasonably be argued that a Commerce Clause that has a loophole for individual activity or could upend drug laws or anti-obscenity laws that are supported by conservatives or food and drug safety laws supported by everyone. That would not give Clarence Thomas pause, but it would give pause to just about every other conservative justice on the Supreme Court. The basic justification for the modern treatment of the Commerce Clause is that economic decisions by Congress should be handled in the legislative realm, not the judicial realm -- those whose economic fortunes are affected by Congressional legislation can hire lobbyists and make political contributions to influence their legislators to vote in their favor, and should accept their losses they way they would expect their adversaries to accept their victories. There is no class of perpetual economic losers or the perpetually economically vulnerable in American democracy whose rights require protection by the courts.
- wildboy
December 13, 2010 at 3:43pm
Wouldn't it be ironic if the one provision in the ACA that Obama opposed throughout his campaign for President, the mandate, upended his most significant accomplishment as President. Ah, the mandate, the gift that keeps on giving. To the insurers. What a bargain for the insurers. If the mandate is approved by the courts, it delivers millions of young and healthy customers to the insurers; if not, it may deliver the insurers from all the rest of the ACA. Of course, there's always the possibility the courts may strike down the mandate and not the rest of ACA. And if you believe that, I have some bonds I'd like to sell you.
- rayward
December 13, 2010 at 4:42pm
"He is a Repulican appointee with a history of conservative rulings." And how different are the usual 5 guys on the Supreme Court? Actually, I've never felt comfortable with the individual mandate with no "public option". Drivers are required to purchasing insurance, but no one is required to drive. In the end, this is just another reason why just about any country with universal health insurance goes single-payer.
- stanalama
December 13, 2010 at 4:46pm
stanalama said: "Actually, I've never felt comfortable with the individual mandate with no "public option". Drivers are required to purchasing insurance, but no one is required to drive. In the end, this is just another reason why just about any country with universal health insurance goes single-payer." Neither is anyone required to visit a doctor, a hospital, public health care facility, obtain a prescription antibiotic, ride in an ambulance, etc. But we know damn well that they will. You betcha!
- Tgossard
December 13, 2010 at 5:33pm
It's a shame there wasn't an "explode" clause written into the law: if the courts struck down major portions of the law, the entire Congress/First Family/White House cabinet level staff and all federal judges lose their health insurance immediately. It would be fun to see some of those old fucks get sick and die penniless and mercilessly. I'd throw in that the cessation of benefits was retroactive to when the ACA passed, and that would mean the entire lot would owe payments to the plan Yes, I'm being vicious and those assholes deserve it.
- tnmats
December 13, 2010 at 8:17pm