After earlier defeats in federal court, opponents of the new national health care reform have won a round. Since we now have a split among the courts, it is a virtual certainty that the U.S. Supreme Court eventually will decide the issue.
In the meantime, states, including California, that support affordable access to health care should continue to press ahead aggressively in implementing the law. This one decision is not a game-stopper.
A U.S. district court judge in Virginia ruled Monday that the individual mandate part of the law, which would require individuals beginning in 2014 to carry minimum health insurance coverage or pay a tax penalty, is unconstitutional.
In reaching this conclusion, Judge Henry Hudson had to do contortions and gyrations that overturn settled constitutional doctrine going back to Chief Justice John Marshall in 1819. If Judge Hudson's radical decision stands, it reaches far beyond health care, with the potential to hamper the ability of the United States to have a modern government and economy.
No one, including Judge Hudson, denies that Congress has the power under the U.S. Constitution to "regulate Commerce among the several states." Regulating the national health insurance market clearly is within that core commerce power. Judge Hudson did not strike down the rest of the law, including provisions, for example, that require insurers to cover Americans who have pre-existing conditions.
So we come to the individual mandate. Is it an "enumerated power" of Congress in the Constitution? No.
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