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Obamacare Unconstitutional

By: Ben Howe (Diary)  |  December 13th, 2010 at 12:38 PM  | 

RESIZE: AAA

In a stunning defeat for President Obama, a Virginia judge has declared parts of the Health Care Reform bill to be unconstitutional.

As we digest the opinion we will post more information, until then consider this an open thread.

COMMENTS

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  • izoneguy

    http://www.foxnews.com/politics/2010/12/13/federal-judge-rules-favor-virginia-challenge-health-care-law/

    Casting an unmistakable and perhaps permanent pockmark on the face of the Obama administration, a federal judge in Virginia ruled Monday that a major component of the new health care reform law is unconstitutional.

    Judge Henry E. Hudson ruled Monday for the state’s claim that the requirement for people to purchase health care exceeds the power of Congress under the Constitution’s Commerce Clause.

    • http://908StraightSt.wordpress.com/ mbecker908
  • MGamo

    How will this effect us here in MA, where we also have an individual mandate to purchase health insurance or face a fine… Thanks Romney

    • chihank

      The Mittens will say ObamaCare is bad because its a federal issue. RomenyCare fine because its a state issue. Thus Romney is the Federalist Candidate.

      • izoneguy

        Oh wait…..

        Wasn’t Romney a Republican???

        • conservativemusician

          (n/t)

          • izoneguy

            Exactly

    • Scope

      only affects the residents in Virginia. It will go to the Supreme Court, and that ruling with affect all the residents in this country. MA could repeal their Mass Care law.

      • http://908StraightSt.wordpress.com/ mbecker908

        force anyone to purchase health insurance.

        The bottom line though is that it will move from the Rocket Docket to SCOTUS.

        • izoneguy

          The judge held that the act is severable, so only the indv. mandate and those provisions “directly dependent” on the indv. mandate that refer back to it specifically will be struck down.

          So how would ObamaCare be funded? More taxes?
          The Republicans need to yell it – loud & clear – America is broke –
          we cannot afford ObamaCare. Period.

        • Scope

          I remembered reading something about Virginia’s unique standing with it’s particular case from when the case was originally brought before Judge Hudson (Cuccinelli filed the suit within an hour of passage of Ocare), and the questions he asked, and the comments he made at that time. I was able to find the article again which includes-

          “How Judge Hudson reached these conclusions is interesting, in part because the path he took is unavailable to the states in the multistate lawsuit against health care reform. Virginia gained standing and it’s claims ripeness because Virginia passed a statute that conflict’s with health care reform, and would fall before federal law, unless the court finds the federal law unconstitutional.”

          I remember back at the time Cuccinelli didn’t want to join with the multistate suit, and this was probably why. The Virginia legislature had passed legislation that VA. residents were not obligated to purchase health insurance. Would it behoove other states to pass similar legislation that their residents aren’t obligated? I understand that if the Supreme Court rules the mandate unconstitutional, it affects the nation, with no further legislation necessary. Would it be wise for states to still pass their own laws? The Supreme Court does not work at the speed of the Rocket Docket, and, who knows how many months or years it will take for this to reach the Supremes.

          One of the things Cuccinelli was not successful with was putting everything on hold until a Supreme Court ruling. That would have been helpful to states that are in the process of preparing for the implementation of Ocare. They are left hanging.

          I also agree with you that if the individual mandate is found unconstitutional, the severability clause is mostly meaningless. Without the mandate, people will buy insurance only when they become ill or injured. There will be few healthy premiums paid to keep any insurance companies in business. Then again, that may be the O’s plan. Cantor’s statement that the Republicans would keep the pre-existing clause was surprising, especially because one of his biggest donors was Blue Cross and Blue Shield. That would have an equally bad outcome for the insurance companies.

          • http://908StraightSt.wordpress.com/ mbecker908

            And SCOTUS responds to political pressure. This will most likely be argued before the Appeals Court in the next few months and will be on the SCOTUS docket no later than the fall.

            There was no reason to put everything on hold, the only issue decided was the mandate.

            Bottom line, no mandate, no Obamacare.

          • JSobieski

            Technicallly speaking, unless the HHS is located within the VA district court’s jurisdiction, the ruling is limited to the jurisdiction of the court.

            That is not to say that the scope of the ruling won’t expand as it is appealed, or that other courts won’t follow it—but unless the HHS is in the district, this decision doesn’t technically or directly impact the country as a whole.

    • Locked and Loaded

      this ruling will serve to trim the 2012 Republican field by one surefire loser.

      • earlgrey
        • Scope

          and he still backs his Romneycare decision. He may just as well take all his campaign cash and flush it.

  • http://seekingliberty.wordpress.com fmaidment

    …and a dozen more pending.

    Yeah, this one ain’t going to the SCOTUS.

    /sarcasm

  • erod

    I want to hear these words more often!!! :D

  • izoneguy

    Come on Republicans go in for the kill…….

    • http://theminorityreportblog.com Repair_Man_Jack

      This will either be repealed or we will suffer the financial collapse of the entire public health system…

    • conservativemusician

      Plus, I heard that Cantor is saying that there are good things in the current Obamacare debacle that are worth saving. I find this hard to believe, considering the enormous financial damage this piece of crap is going to do to our country for generations to come. Why can’t they just repeal the stupid thing and then do the legislation one major section at a time? I guess this common sense approach is too much for their more “sophisticated” minds to handle. Either that or they don’t think they could get enough votes on individual sections to get it passed. I really hope that the new crop of Tea Party freshmen coming in can hold the old guard’s feet to the fire when they get there.

  • http://theminorityreportblog.com Repair_Man_Jack

    This is a good start, but unless Medipander gets replaced with a program that is a way better deal for doctors, you will see almost 50% of the medical profession refuse to touch a Medicare/Medicaid case.

  • msctex

    I understand the concept, sort of a variation of the “fruit of the poison tree” notion, where if part of a Bill is deemed unfit, so goes the rest if it. But I would be interested to hear from someone with more legal expertise as to the odds of the SCOTUS upholding the decision based upon this angle.

    Also, while this Congress’ overall incompetence will become the stuff of political legend, a self-laid legal land mine like this beggars belief. Any thoughts as to what they might have been thinking? Or, was it as simple as their usual MO of throwing it against the wall and seeing what sticks?

    • acat

      or like trying to run out the clock and finding that ya read it wrong…

      Mew

    • http://908StraightSt.wordpress.com/ mbecker908

      Without the particular portion of the law that the judge struck down today, there will be no law because the government cannot force people to participate.

      • JSobieski

        The HHS gets to determine what must be covered, what percentage of money must be paid out in claims, and what insurance companies can do in response to a change in conditions.

        Those aspects of the law will continue on. The lack of an individual mandate merely changes the economics even less rational then they were before.

        • izoneguy

          The core of Obamacare is the HHS regulating health insurance companies in order to drive them out of business which would only leave the government as the health insurer of last resort.

          Google: General Motors and the rule of law

          • JSobieski

            nt

          • d_lamar

            Every attempt by the marxist / dems to regulate an industry, any industry, has at its long range goal the eventual failure of that industry from the weight of regulations, taxes, etc., so that they can eventually argue that the industry is a failure, and therefore must be taken over by the federal government.

            These people know exactly what they’re doing, and they are patient.

            The only thing that can stop them is a Supreme Court that understands that the 10th amendment was put there for a reason.

        • earlgrey

          the thing could start to unravel pretty quickly.

          I don’t know who or where I read it. The person predicted that if the mandate was struck down, than the judge would only strike the mandate from the law (despite the lack of the severabillity clause). The author than went on to write that it might now matter though because without the mandate the whole thing could collapse. Kind of like when you play Jenga (sp?).

          I am sorry I don’t have the reference here to include. It is probably one of those things I read bleary eyed late at night weeping at the future of our country..

          • msctex

            . . .perfectly rational, well-reasoned analyses from intelligent, knowledgeable individuals, that end with different conclusions. It only makes sense, in a way: the law must be interpreted, so we turn to the court.

            I find comfort in the fact that no matter what, nothing these people ever do actually works. It may do a certain amount of damage before it is undone, but so far as actual, as-intended function — it never happens. It is the inevitable side effect of believing 2 and 2 can equal 5, if the intended goal sounds nice enough.

          • JSobieski

            The regulatory framework of the HHS defining what insurance companies have to cover, how much they have to cough up in paying claims each year, and how they handle changes of patient conditions are untouched by this decision. The power of HHS to dictate how the insurance companies conduct business will survive, although the regulators may take a longer view approach in tightening the noose.

            In contrast, the entire financial framework of Obamacare could easily unravel if government can’t force people to buy insurance. Unfortunately, courts won’t (and are not supposed to) get into the issue of financial viability as a basis for overturning provisions like subsidies for the poor to buy insurance. Nor will the taxes on medical devices be impacted.

            Bottom Line if the individual mandate is unconstitutional but no other sections are: Obamacare regulations will either be issued lightly to prevent a quick collapse of the insurance market OR the march to a government option will be quickly reopened because the business case for insurance companies will be insane—they won’t be able to make money, and they will be forced to drop out even faster if people can’t be coerced into becoming their customers.

            I suspect option #1 will occur, because Obama is pretty weak at this point. The HHS will regulate more lightly (at least initially) so the danger of Obamacare will appear to subside when it will really just be dormant–waiting for a future D President to issue tighter regulations and use the ensuing chaos to push for a Public Option.

  • maddog

    President George W. Bush nominated Hudson on January 23, 2002.
    The United States Senate confirmed the nomination on August 1, 2002

    Elections have consequences.

  • dsmurf

    at Limbaugh’s site is correct, the insurance companies still have the 85/15 breakdown to contend with, instead of what was 65/45%-claims vs admin costs, and the government will only charge 200 per month versus what I remember COBRA charging, which was way more than that. I also heard that Insurance companies were not writing anymore health insurance policies for minors.

    This bill stills stinks whether we have to buy anything or not. Like where will I find a Dr, unless I want to pay cash in an underground economy?

    • izoneguy

      Good luck to them trying to stop an illegal underground healthcare trade

      • http://impudent.edublogs.org/ kyle8

        but in a few years we will have a booming illegal trade in incandescent light bulbs.

        • SoulEspresso

          when the dollar collapses.

          Stocking up now!

          • izoneguy

            Or you can use $100 bills as toilet paper – same thing

  • timelyrenewed

    Judge Hudson’s decision is good news, and we all hope that it will prevail when Obamacare finally reaches the Supreme Court two years from now. However, that is not certain, and there remain substantial political powers who regard this vast extension of federal power as acceptable based upon the Supreme Court’s vast expansion of the interstate commerce clause since 1937. The only sure way to stop not only Obamacare, but the innumerable other ways in which the federal government has increased its power beyond the original scope of the Constitution, is to reverse those Supreme Court cases and restore the interstate commerce clause to its original meaning. Given how entrenched these Supreme Court precedents are, this will require a constitutional amendment restating the original, very limited scope of the interstate commerce clause. See http://www.timelyrenewed.com

  • partyof1

    It is not even the beginning of the end. But it is, perhaps, the end of the beginning.

    – Sir Winston Churchill, Speech in November 1942

    —

    A correct decision by the court! To paraphrase David Rivkin, if you can do this, if you can expand the authority of the Commerce Clause to mean that simply choosing not to purchase health insurance constitutes “commerce”, what is it that you cannot do?

    —

    And to quote Justice Thomas on the Commerce Clause:

    ?If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers ? as expanded by the Necessary and Proper Clause ? have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to ?appropriate state police powers under the guise of regulating commerce.?”
    —

    The Federal Governments powers are limited and defined. Everything else belongs to the states. If the Commerce Clause is so elastic that it can mean anything, then the entire constitution will mean nothing. Rule of law will be replaced with rule of whatever-the-hell-we-feel-like-doing-today.