Virginia federal judge rules health care law unconstitutional

McClatchy NewspapersDecember 13, 2010 

WASHINGTON — A federal judge on Monday ruled unconstitutional a key provision of President Barack Obama's landmark health care overhaul law, moving its mandate that Americans buy health insurance coverage one step closer to a Supreme Court showdown.

U.S. District Judge Henry Hudson, a Republican appointee serving the Eastern District of Virginia, said that Congress had exceeded its constitutional power when it imposed the health insurance mandate.

"Despite the laudable intentions of Congress in enacting a comprehensive and transformative health care regime, the legislative process must still operate within constitutional bounds," Hudson wrote.

The insurance mandate _ which would compel even healthy, young Americans to obtain insurance or pay a penalty _ is considered key to the plan’s financial feasibility.

Should the courts ultimately reject the mandate, it would be “very difficult if not impossible” for the rest of the overhaul to work, said a senior administration official, whom the White House allowed to speak to reporters on condition of anonymity.

Hudson's 42-page ruling that the insurance mandate exceeds the Constitution's Commerce Clause does not address the rest of the sweeping health care reform bill. The insurance mandate itself isn't scheduled to take effect until 2014.

Virginia Attorney General Ken Cuccinelli, who filed the challenge to the mandate that triggered Hudson’s ruling, applauded the decision even as he anticipated an appeal.

In a video posted on his Web site, he said that “if the government can order you to buy health insurance, they can order you to buy a car, to buy asparagus, even cauliflower . . . or join a gym. The power is expandable almost without limit if this is allowable and constitutional.” The Justice Department is expected to appeal Hudson’s ruling.

“We're confident that it is constitutional,” White House spokesman Robert Gibbs said.

Some 20-odd cases have been filed overall challenging the law.

White House officials and advocates of the law emphasized that Hudson’s ruling is no more important than two recent rulings by federal judges that upheld the mandate. In October, U.S. District Judge George Steeh in Michigan ruled the insurance mandate fit within congressional power under the Constitution's Commerce Clause. On Nov. 30, U.S. District Judge Norman Moon in Lynchburg, Va. ruled the same.

The Commerce Clause explicitly states that Congress can "regulate commerce…among the several states," although the Supreme Court has struggled for years to decide what activities this covers.

"There is a rational basis for Congress to conclude that individuals’ decisions about how and when to pay for health care are activities that in the aggregate substantially affect the interstate health care market," Moon declared in his 54-page opinion.

Steeh and Moon were both appointed by President Bill Clinton. Hudson is a nominee of President George W. Bush

The dueling judicial decisions are feeding expectations that the nation’s high court ultimately will be asked to weigh in on the sprawling law that aims to extend coverage to 30 million uninsured Americans including those with preexisting conditions.

"We're talking about a couple of years," Northwestern University law and political science professor Andrew Koppelman predicted, noting that "it will take maybe a year for the court of appeals to resolve this, and then another year for it to reach the Supreme Court."

Meanwhile Republicans, poised to take control of the House of Representatives next year, seized on Monday’s ruling to bolster their calls for repeal of the entire legislation, but that’s unlikely.

“Now that a federal judge has shown the individual mandate in ObamaCare to be unconstitutional, it's time to repeal it lock, stock and barrel,” said Rep. Mike Pence, R-Ind.

Outgoing House Speaker Nancy Pelosi, D-Calif., insisted that her party "will stand firm against attempts to roll back the law.” Even after Republicans take over the House in January, Democrats' continued control of the Senate and White House make an outright repeal virtually impossible for at least two years.

Steeh's ruling in Detroit is being appealed to the Sixth Circuit Court of Appeals, based in Cincinnati. The Sixth Circuit covers Kentucky, Michigan, Ohio and Tennessee.

An appeal of Hudson's ruling would go to the Richmond, Va.-based Fourth Circuit Court of Appeals, generally considered among the nation's most conservative. Conflicting appellate court rulings fall to the Supreme Court to resolve. The 63-year-old Hudson graduated from American University Law School, which he attended at night. Prior to his appointment to the bench, he served as a federal prosecutor and as director of the U.S. Marshals Service. Though approved by the Senate on a voice vote, with no stated Democratic opposition, his conservative leanings are well known.

Hudson’s personal financial disclosure statements filed through 2009 showed he is an investor in Campaign Solutions Inc., a Virginia firm which has done work for assorted Republican politicians including 2008 presidential candidate John McCain and his running mate, Sarah Palin.

House Speaker-designate John Boehner, R-Ohio, urged individual states following the Hudson ruling to “carefully weigh the benefits of investing time and resources in ObamaCare’s implementation now that its central mandate has been ruled unconstitutional.”

Beyond the constitutional claims, Republicans say the overhaul will kill jobs or drive down wages by adding to businesses’ costs and bureaucracies.

Rulings against aspects of the overhaul _ regardless of whether they succeed on appeal _ could in the short term at least embolden Republicans and weaken Obama and congressional Democrats politically in the eyes of an electorate that’s deeply divided on the merits of the overhaul.

A Kaiser Family Foundation tracking poll of 1,207 adults, released Monday, found 42 percent of Americans had a “generally favorable” view of the law while the view of 41 percent was generally unfavorable.

That could impact policymaking in the new Congress and also shape the landscape of the 2012 elections. The Obama administration is holding ongoing discussions with the insurance industry and other stakeholders in the overhaul, but “we’re not in discussions to alter any piece of the law right now,” said the senior administration official.

(David Lightman contributed to this report.)

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