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Judge Strikes Down Mandated Health Coverage; Supreme Court Review Expected

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Using language that echoes the lingering political debate over health care reform, and presaging a novel legal debate that now is virtually certain to end at the U.S. Supreme Court, a federal judge in Virginia Monday struck down as unconstitutional the controversial "individual mandate" provision of the nation's new law. "At its core," U.S. District Judge Henry Hudson wrote, "this dispute is not simply about regulating the business of insurance -- or crafting a scheme of universal health insurance coverage -- it's about an individual's right to choose to participate."

Hudson, a 2002 appointee of George W. Bush, thus became the first federal judge in the nation to endorse the merits of a legal challenge to the mandate provision -- which requires individuals to purchase health insurance, some for the first time, to help reduce the overall costs of health care. The Virginia lawsuit which generated the ruling is one of dozens around the country (another challenge, out of Florida, will move forward with a hearing later this week). Earlier this year, a federal trial judge in Michigan, and another federal trial judge in Virginia, dismissed similar constitutional challenges to the new law.

In his 42-page order, Judge Hudson declared there was no legal precedent under the Commerce Clause of the Constitution to allow the Congress through federal legislation "to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market." The judge also ruled that the mandate could not be validated under the General Welfare Clause of the Constitution, which permits broad federal power to tax, because it is "in form and substance, a penalty as opposed to a tax."

"A thorough survey of pertinent constitutional case law," Judge Hudson wrote, "has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchase a product." And he rejected each of the federal government's arguments supporting the new measure as necessary to save billions of dollars in state, local and national health care costs. The feds "posit," the judge wrote:
"that every individual in the United States will require health care at some point in their lifetime, if not today, perhaps next week or even next year. [Their] theory further postulates that because near universal participation is critical to the underwriting process, the collective effort of refusal to purchase health insurance affects the national market. Therefore... requiring advance purchases of insurance based upon a future contingency is an activity that will inevitably affect interstate commerce. Of course, the same reasoning could apply to transportation, housing or nutritional decisions. This broad definition of the economic activity subject to congressional regulation lacks logical limitation."
The Justice Department, which anticipated the adverse result based upon Judge Hudson's previous comments about the validity of the new law in a court hearing early this year, will almost certainly appeal his ruling to the 4th U.S. Circuit Court of Appeals. A DOJ spokesman said Monday in the immediate wake of Judge Hudson's order: "We are disappointed in today's ruling but continue to believe – as other federal courts in Virginia and Michigan have found – that the Affordable Care Act is constitutional. There is clear and well-established legal precedent that Congress acted within its constitutional authority in passing this law and we are confident that we will ultimately prevail."

It is also conceivable, but far less likely, that the federal government will seek an expedited review of the matter by the Supreme Court. And it is far less likely still that the justices would welcome such a request before more lower court judges, and perhaps two or more federal appeals courts, chime in on the constitutional questions raised by the new measure. In any event, neither of their appellate options must look appetizing now to federal lawyers. The 4th Circuit is one of the most conservative federal appeals courts in the nation. And the Supreme Court itself has a clear conservative majority, which includes Justices Clarence Thomas, whose wife, Virginia Thomas, is a member of a Virginia political group that has actively opposed the new health care laws.

Those groups Monday were quick to praise Judge Hudson's ruling. And Sen. Orrin Hatch (R-Utah), a key member of the Senate Judiciary Committee, said, "Today is a great day for liberty. Congress must obey the Constitution rather than make it up as we go along. Liberty requires limits on government, and today those limits have been upheld." The White House, meanwhile, responded the ruling with a statement from presidential advisor Stephanie Cutter. "Opponents of reform claim that the individual responsibility requirement-- the requirement that all Americans carry a minimum level of insurance by 2014-- exceeds Congress' power to regulate interstate commerce because it penalizes economic 'inactivity.' Make no mistake-- individuals who choose to go without health insurance are actively engaged in economic decision making-- the decision to pay for health care out-of-pocket or to seek uncompensated care."

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Tim and barbara

so what we need is a single payer system and the taxes to pay for it.

January 17 2011 at 7:04 PM Report abuse -1 rate up rate down Reply

Fox News reported this morn that the UK is revamping their health care getting rid of bureaucrats and letting doctors have more control. Our progressive party, not the democrat party anymore, want to degress our country with a health program that will not work.

January 17 2011 at 11:26 AM Report abuse +4 rate up rate down Reply

To those of you who are using state mandated requirements to purchase automobile liability insurance......
There is a major difference between this and health insurance. Auto liability insurance is required because we are out on public roads , on roads shared by other drivers, and our actions while driving affect other people and property. If one chooses not to buy health insurance it affects you and only you. It's YOUR loss. Note: the states do not require us to buy physical damage coverage to OUR OWN vehicle. This is the same concept. The government likewise should not be requiring us to buy health insurance for our own bodies.

January 03 2011 at 10:47 AM Report abuse +3 rate up rate down Reply

After having health ins. for 40+ years and not ever realy needing it I was going to encourage my kids just to buy accident ins. while they are young and healthy which is cheap and investing 3 or $400 a month in something else for the future.

December 14 2010 at 6:35 PM Report abuse -7 rate up rate down Reply
2 replies to wesxauto's comment

Don't worry about the ratings on your comments here, wexauto. jjohnblack has resumed his old practice of using multiple screen names and accounts to deliver multiple thumbs down to your ratings and those others he dislikes, while delivering multiple thumbs up to his own and those he likes.

December 15 2010 at 5:48 AM Report abuse -2 rate up rate down Reply

Don't worry about the ratings on your comments here, wexauto. jjohnblack has resumed his old practice of using multiple screen names and accounts to deliver multiple thumbs down to your ratings and those others he dislikes, while delivering multiple thumbs up to his own and those he likes.

December 15 2010 at 5:48 AM Report abuse -1 rate up rate down Reply

If you read the constitution in good faith in which it was written the feds have very little power to make an individual person do anything.

December 14 2010 at 5:49 PM Report abuse +4 rate up rate down Reply

As usual the judge reaches a very reasonable decision but when the liberal folks disagree with his decision the personal attacks begin. Also the fact that he was appointed by Bush is supposed to mean that he is not capable of a fair decision. When this gets to the U.S. Supreme Court and they quite likely rule the mandate unconstitutional the personal attacks against them will begin in earnest. The Supreme Court is the only hope we have to counter the decisions by the mostly liberal activist justices in the lower courts.

December 14 2010 at 4:24 PM Report abuse +2 rate up rate down Reply
1 reply to joe's comment

No, what makes him incapable of a fair decision is the fact that his political consulting firm did anti-healthcare reform work for the Virginia Attorney General just last year! Put yourself in our shoes--imagine the judge had ruled the other way, and had owned a political consulting firm that had done pro-healthcare reform work just last year. You conservatives would be going insane about "liberal corruption" and "judicial activism." If that does not constitute a clear conflict of interest, nothing does.

December 14 2010 at 10:21 PM Report abuse +5 rate up rate down Reply

if we go with judge hudson and the gop about insurance can not be lets do away with auto and home insurance...the government should not be able to force me to buy auto insurance...i like this new mandates on any thing..lets make drugs legal..thegovernment should not be able to mandate that i can not take drugs....everything is legal in america now under no mandate laws

December 14 2010 at 3:31 PM Report abuse -12 rate up rate down Reply
3 replies to rastalif's comment

I have savings to cover my reasonable health care costs. The forced GM bankruptcy thanks to the Obama administration left me without health insurance and too young for Medicare. I recognize that every individual may eventually need health care. They may also need a haircut, a meal, shelter, clothing, or a ride to the Mall. That does not mean it would be constitutional for congress to force us to buy private insurance for haircuts, lunch, blue jeans, or bus rides.

December 14 2010 at 2:56 PM Report abuse -1 rate up rate down Reply

The judge's argument is ridiculous and extremely weak - it's already been established that every car owner needs to buy insurance to legally operate their car. This is because of costs to the state and to other private individuals operating cars if only those who elect to purchase insurance do so. The same principle applies to health insurance - those without health insurance cause great extra cost to the country and individuals who do pay for insurance, since they end up using hospital emergency rooms, or other free federal clinics, etc. which pass the cost on to the consumer and the government. There is no rugged individual who can merely deny that they want health insurance - we all need health care and are all connected, as far as the health care system Requiring all American's to have it reflects the common sense the rest of the technologically advanced world has recognized long ago... we're the last advanced country to still be squabbling about whether or not we should have universal health care, and it's a lamentable situation all driven by greed and the vise grip insurance companies have on American politics. This judge is just another pawn in the game.

December 14 2010 at 12:19 PM Report abuse -10 rate up rate down Reply
3 replies to Bill's comment

One comment to all... Please state if you have health insurance in your comments. I have health insurance, thank God. I also believe that all Americans should have it, especially our children. Please let everyone know if you have been blessed with health insurance and then state how you feel about this issue.

December 14 2010 at 9:41 AM Report abuse -7 rate up rate down Reply

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