Court strikes down Obamacare

A federal judge ruled that the government cannot compel citizens to buy a particular product, striking down the key feature of the health care reform bill, which forces everyone to buy insurance.

The Obama administration’s requirement that most citizens maintain minimum health coverage as part of a broad overhaul of the industry is unconstitutional, a federal judge ruled, striking down the linchpin of the plan.

U.S. District Judge Henry Hudson in Richmond, Virginia, today said that the requirement in President Barack Obama’s health-care legislation goes beyond Congress’s powers to regulate interstate commerce. While severing the coverage mandate, which is set to become effective in 2014, Hudson didn’t address other provisions such as expanding Medicaid.

“At its core, 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,” wrote Hudson, who was appointed by President George W. Bush in 2002.

The ruling is the government’s first loss in a series of challenges to the law mounted in federal courts in Virginia, Michigan and Florida, where 20 states have joined an effort to have the statute thrown out.

Constitutional scholars said unless Congress changes the law, its fate on appeal will probably be determined by the U.S. Supreme Court.

via U.S. Health-Care Law Requirement Thrown Out by Judge Update4 – Bloomberg.

You may recall that we talked about this on this blog, the difficulty of  the health care reform bill passing constitutional muster.  As someone said, it may have been in the national interest to preserve the U.S. auto industry, but that doesn’t mean the government has the authority to make every American buy a Chevy.

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • Cincinnatus

    I, too, found the individual mandate to be constitutionally problematic, and I’m glad at least one constitutional judge agrees with me.

    Unfortunately, however, this is only going to be worse for the program itself and healthcare costs generally: since no one can now be denied for preexisting conditions, etc., people are now (assuming this court decision holds up at the appellate and Supreme Court levels) simply going to wait until they are ill to purchase insurance. This will completely destroy the actuarial risk pool necessary for any kind of insurance actually to function. In other words, if we didn’t have a healthcare crisis before this bill was passed (and I don’t really think we did), this court decision is certainly going to hasten the arrival of such a crisis.

  • Cincinnatus

    I, too, found the individual mandate to be constitutionally problematic, and I’m glad at least one constitutional judge agrees with me.

    Unfortunately, however, this is only going to be worse for the program itself and healthcare costs generally: since no one can now be denied for preexisting conditions, etc., people are now (assuming this court decision holds up at the appellate and Supreme Court levels) simply going to wait until they are ill to purchase insurance. This will completely destroy the actuarial risk pool necessary for any kind of insurance actually to function. In other words, if we didn’t have a healthcare crisis before this bill was passed (and I don’t really think we did), this court decision is certainly going to hasten the arrival of such a crisis.

  • http://www.utah-lutheran.blogspot.com Bror Erickson

    The courts are a double edged sword these days.
    But yes Cincinnatus you are correct in your analysis. That is unless the insurance companies are able to argue for a constitutional right to deny service.
    On the other hand it may just bankrupt the insurance companies so their are none. Then when everyone is paying out of pocket, it might drive the costs down to what can be paid by the average individual our of pocket. Creating a new business model for the health care industry. But we’ll see.

  • http://www.utah-lutheran.blogspot.com Bror Erickson

    The courts are a double edged sword these days.
    But yes Cincinnatus you are correct in your analysis. That is unless the insurance companies are able to argue for a constitutional right to deny service.
    On the other hand it may just bankrupt the insurance companies so their are none. Then when everyone is paying out of pocket, it might drive the costs down to what can be paid by the average individual our of pocket. Creating a new business model for the health care industry. But we’ll see.

  • http://facebook.com/mesamike Mike Westfall

    All is going as planned.

    Soon the proletariat will be screaming for socialized “single-payer” health care, because the private industry won’t be able to prove any.

  • http://facebook.com/mesamike Mike Westfall

    All is going as planned.

    Soon the proletariat will be screaming for socialized “single-payer” health care, because the private industry won’t be able to prove any.

  • http://www.bikebubba.blogspot.com Bike Bubba

    Mike may be right, but I’m still heartened to see that at least one judge learned about the 10th Amendment.

    That said, if Obama thought the uproar over his health insurance deform plan was nasty, wait until he tries to get a government (not public, government) option passed.

  • http://www.bikebubba.blogspot.com Bike Bubba

    Mike may be right, but I’m still heartened to see that at least one judge learned about the 10th Amendment.

    That said, if Obama thought the uproar over his health insurance deform plan was nasty, wait until he tries to get a government (not public, government) option passed.

  • DonS

    Yes, we did indeed predict this outcome, though it is yet to be determined whether the higher courts will actually follow suit and affirm Judge Hudson’s reading of the Constitution. Logically, the decision is a no-brainer, and the amazing thing is that two other federal judges so far have found the mandate constitutional. For if the final holding is that the federal government can force someone to participate in interstate commerce, by making them buy health insurance, then there is no practical limitation imposed by the interstate commerce clause at all. We might as well just read it out of the Constitution entirely, and stop going through the motions. Moreover, there would indeed be no constitutional impediment to the federal government later imposing a mandate that everyone buy other products, such as the Chevy Volt. Which, of course, would be ridiculous.

    Apparently, in its haste to circumvent the will of the people last spring, Congress failed to include the typical severability clause in the Obamacare legislation. So Judge Hudson had the ability to declare the entire law unconstititional, but chose the judicially restrained approach of not doing so, only declaring the purchase mandate and other portions of the law relying on that mandate to be unenforceable. It is true, as has been noted above, that this makes the whole scheme infeasible, because no one need purchase insurance until they get sick, under guaranteed issue. While liberals no doubt will praise this as meaning that socialized care is inevitable, my hope is that it will provide the impetus for Congress and the President to finally heed the people and scrap the whole scheme, in favor of a bipartisan approach that President Obama promised in 2008.

  • DonS

    Yes, we did indeed predict this outcome, though it is yet to be determined whether the higher courts will actually follow suit and affirm Judge Hudson’s reading of the Constitution. Logically, the decision is a no-brainer, and the amazing thing is that two other federal judges so far have found the mandate constitutional. For if the final holding is that the federal government can force someone to participate in interstate commerce, by making them buy health insurance, then there is no practical limitation imposed by the interstate commerce clause at all. We might as well just read it out of the Constitution entirely, and stop going through the motions. Moreover, there would indeed be no constitutional impediment to the federal government later imposing a mandate that everyone buy other products, such as the Chevy Volt. Which, of course, would be ridiculous.

    Apparently, in its haste to circumvent the will of the people last spring, Congress failed to include the typical severability clause in the Obamacare legislation. So Judge Hudson had the ability to declare the entire law unconstititional, but chose the judicially restrained approach of not doing so, only declaring the purchase mandate and other portions of the law relying on that mandate to be unenforceable. It is true, as has been noted above, that this makes the whole scheme infeasible, because no one need purchase insurance until they get sick, under guaranteed issue. While liberals no doubt will praise this as meaning that socialized care is inevitable, my hope is that it will provide the impetus for Congress and the President to finally heed the people and scrap the whole scheme, in favor of a bipartisan approach that President Obama promised in 2008.

  • http://www.toddstadler.com/ tODD

    “All is going as planned.” Oh, please, Mike (@3). I guess it’s time to remind everyone of Hanlon’s razor:

    Never attribute to malice that which is adequately explained by stupidity.

    I remember paying a little attention around the time the health care bill was being debated, and if I’m really supposed to believe that it was all a masterly orchestrated maneuver, of which this is but one part of the smooth, flawless plan … I’m sorry, but you ask too much.

  • http://www.toddstadler.com/ tODD

    “All is going as planned.” Oh, please, Mike (@3). I guess it’s time to remind everyone of Hanlon’s razor:

    Never attribute to malice that which is adequately explained by stupidity.

    I remember paying a little attention around the time the health care bill was being debated, and if I’m really supposed to believe that it was all a masterly orchestrated maneuver, of which this is but one part of the smooth, flawless plan … I’m sorry, but you ask too much.

  • http://facebook.com/mesamike Mike Westfall

    The denial that this a part of a masterly orchestrated maneuver is just part of the smooth, flawless plan….

    I’m thinking I need to double up on the tinfoil.

  • http://facebook.com/mesamike Mike Westfall

    The denial that this a part of a masterly orchestrated maneuver is just part of the smooth, flawless plan….

    I’m thinking I need to double up on the tinfoil.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    “Never attribute to malice that which is adequately explained by stupidity.”

    Wait, I thought conservatives were stupid, not libs. Hmm. Everyone who opposed it was labeled stupid and behind and unable to see how genius the plan was.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    “Never attribute to malice that which is adequately explained by stupidity.”

    Wait, I thought conservatives were stupid, not libs. Hmm. Everyone who opposed it was labeled stupid and behind and unable to see how genius the plan was.

  • http://www.bikebubba.blogspot.com Bike Bubba

    It’s interesting to contemplate applying Hanlon’s Razor to Congress, an overwhelmingly degreed group, and half of whom have passed the bar (to practice law, that is….nearly 100% pass the bar repeatedly otherwise!), and many of whom have Ivy League degrees. Is that Hahvid sheepshin going to get you a cup of coffee if you add a few bucks, then? :^)

    OK, to be serious, I’d attribute the passing of Obamacare more to “hysteria” and “railroading” than “stupidity,” but then again, I’d have to suggest that if passing the (legal) bar doesn’t mean you can see through basic propaganda techniques, we have some serious problems that transcend politics.

    And apparently, that is exactly the case, unless the left passed this bill with an ulterior motive in mind. Yikes. Neither possibility is pleasant.

  • http://www.bikebubba.blogspot.com Bike Bubba

    It’s interesting to contemplate applying Hanlon’s Razor to Congress, an overwhelmingly degreed group, and half of whom have passed the bar (to practice law, that is….nearly 100% pass the bar repeatedly otherwise!), and many of whom have Ivy League degrees. Is that Hahvid sheepshin going to get you a cup of coffee if you add a few bucks, then? :^)

    OK, to be serious, I’d attribute the passing of Obamacare more to “hysteria” and “railroading” than “stupidity,” but then again, I’d have to suggest that if passing the (legal) bar doesn’t mean you can see through basic propaganda techniques, we have some serious problems that transcend politics.

    And apparently, that is exactly the case, unless the left passed this bill with an ulterior motive in mind. Yikes. Neither possibility is pleasant.

  • WebMonk

    I’d call hysteria and railroading particular types of stupidity, I think.

  • WebMonk

    I’d call hysteria and railroading particular types of stupidity, I think.

  • http://www.toddstadler.com/ tODD

    The Volokh Conspiracy, a not-liberal site (so it’s okay to click through and read it) had this interesting analysis of the ruling, noting the “significant error in Judge Hudson’s opinion.”

  • http://www.toddstadler.com/ tODD

    The Volokh Conspiracy, a not-liberal site (so it’s okay to click through and read it) had this interesting analysis of the ruling, noting the “significant error in Judge Hudson’s opinion.”

  • Porcell

    Todd, Orin Kerr’s view at Volokh, itself, contains a logical error, as the blog respondent, Tocqueville points out as follows:

    …But I fear you may be starting to imagine things. The quote you provide from Judge Hudson is plainly concerned solely with ends. By stating that an individual decision “does not constitute the type of economic activity subject to regulation under the Commerce Clause,” he declares the ends of the law to be illegitimate, and thus no expansion of means, however slippery, can save it.

    There are distinct limitations to the necessary and proper clause. Judge Hudson has properly ruled that the end of the ObamaCare provision that requires all individuals to go into the insurance marketplace for health insurance is unconstitutional. My guess is that the Supreme Court will uphold Judge Hudson’s ruling.

    The Volokh Conspiracy blog provides a daily education in the use of legal logic.

  • Porcell

    Todd, Orin Kerr’s view at Volokh, itself, contains a logical error, as the blog respondent, Tocqueville points out as follows:

    …But I fear you may be starting to imagine things. The quote you provide from Judge Hudson is plainly concerned solely with ends. By stating that an individual decision “does not constitute the type of economic activity subject to regulation under the Commerce Clause,” he declares the ends of the law to be illegitimate, and thus no expansion of means, however slippery, can save it.

    There are distinct limitations to the necessary and proper clause. Judge Hudson has properly ruled that the end of the ObamaCare provision that requires all individuals to go into the insurance marketplace for health insurance is unconstitutional. My guess is that the Supreme Court will uphold Judge Hudson’s ruling.

    The Volokh Conspiracy blog provides a daily education in the use of legal logic.

  • Joe

    Volokh is a great blog for anyone interested in current legal issues. As Porcell points out the comments are (often) just as learned as the posts.

    I have to agree that Kerr’s analysis seems wide of the mark. If you have first decided that the object of the regulation is outside the scope of the commerce clause then by definition there are no actions that are either necessary or proper.

  • Joe

    Volokh is a great blog for anyone interested in current legal issues. As Porcell points out the comments are (often) just as learned as the posts.

    I have to agree that Kerr’s analysis seems wide of the mark. If you have first decided that the object of the regulation is outside the scope of the commerce clause then by definition there are no actions that are either necessary or proper.

  • DonS

    tODD @ 11: Yes, actually, Professor Kerr is not the only one to note Judge Hudson’s summary dismissal of the Necessary and Proper Clause in his discussion of the basis for his ruling. However, it’s probably not a serious flaw. The clause itself merely states that Congress shall have the power to enact all laws “Necessary and Proper” to execute its constitutional authority. So, it is a clause that is subsidiary to the actual enumerated powers which Congress has, not a license to exceed them. A good discussion of the clause is found here http://judicialnetwork.com/sites/default/files/Boehneramicus.pdf
    beginning on page 6 of John Boehner’s amicus brief, filed in the Florida case, yet to be decided.

    The fact of the matter is that yesterday’s ruling, coupled with the two earlier rulings that held the other way, and the upcoming Florida decision (I’m not sure if there are any others pending) will each ultimately be decided by the Supreme Court. As they move up the ladder, they will each be extensively re-briefed, and the actual legal findings of the lower courts are not deferred to in any way in these appeals.

  • DonS

    tODD @ 11: Yes, actually, Professor Kerr is not the only one to note Judge Hudson’s summary dismissal of the Necessary and Proper Clause in his discussion of the basis for his ruling. However, it’s probably not a serious flaw. The clause itself merely states that Congress shall have the power to enact all laws “Necessary and Proper” to execute its constitutional authority. So, it is a clause that is subsidiary to the actual enumerated powers which Congress has, not a license to exceed them. A good discussion of the clause is found here http://judicialnetwork.com/sites/default/files/Boehneramicus.pdf
    beginning on page 6 of John Boehner’s amicus brief, filed in the Florida case, yet to be decided.

    The fact of the matter is that yesterday’s ruling, coupled with the two earlier rulings that held the other way, and the upcoming Florida decision (I’m not sure if there are any others pending) will each ultimately be decided by the Supreme Court. As they move up the ladder, they will each be extensively re-briefed, and the actual legal findings of the lower courts are not deferred to in any way in these appeals.

  • DonS

    The significance of Judge Hudson’s ruling is not the ruling itself. Speaker Pelosi, when asked about the potential unconstitutionality of the Obamacare legislation, famously responded “Are you serious?”. This ruling is evidence that the claims of unconstitutionality are, indeed, “serious” and that there are at least potential teeth remaining in the fact that the Constitution grants the federal government only carefully enumerated powers. A blow for liberty has been struck.

  • DonS

    The significance of Judge Hudson’s ruling is not the ruling itself. Speaker Pelosi, when asked about the potential unconstitutionality of the Obamacare legislation, famously responded “Are you serious?”. This ruling is evidence that the claims of unconstitutionality are, indeed, “serious” and that there are at least potential teeth remaining in the fact that the Constitution grants the federal government only carefully enumerated powers. A blow for liberty has been struck.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    If you have to force someone to buy something, then it might not be such a good deal. :-)

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    If you have to force someone to buy something, then it might not be such a good deal. :-)

  • bkw

    At this point, only kids can be denied insurance based on preexisting conditions. The adult portion starts in 2014. Here in Utah, the major insurance carrier has gotten around the child portion by no longer writing child only insurance policies. This is going on in different parts of the country too.

  • bkw

    At this point, only kids can be denied insurance based on preexisting conditions. The adult portion starts in 2014. Here in Utah, the major insurance carrier has gotten around the child portion by no longer writing child only insurance policies. This is going on in different parts of the country too.

  • collie

    Haste makes waste. A mess is what the current congress gave us with this healthcare bill. I’m with DonS. I hope President Obama works with the 112th congress in a bipartisan manner to craft a bill with flexibility, allowing people freedom to choose what they need or want. Forcing everyone into Obamacare is nothing more than herding us all into one giant HMO. Has your privately run HMO ever denied you a claim? At least you could go outside the system and receive care, yes, you had to pay for it, but at least there was another option. What are you going to do when the government HMO says no? Where are you going to go? Out of the country?

  • collie

    Haste makes waste. A mess is what the current congress gave us with this healthcare bill. I’m with DonS. I hope President Obama works with the 112th congress in a bipartisan manner to craft a bill with flexibility, allowing people freedom to choose what they need or want. Forcing everyone into Obamacare is nothing more than herding us all into one giant HMO. Has your privately run HMO ever denied you a claim? At least you could go outside the system and receive care, yes, you had to pay for it, but at least there was another option. What are you going to do when the government HMO says no? Where are you going to go? Out of the country?

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    My son’s doctor already quit. My doctor wrote a letter informing patients that they would have to pay $1500 a year to be on a list of patients that are seen promptly. Those who don’t pay go to the end of the line. It was tactfully written, but the message was clear. She could not afford to keep her practice open unless enough people were willing to pay a premium for faster service and a few minor perks.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    My son’s doctor already quit. My doctor wrote a letter informing patients that they would have to pay $1500 a year to be on a list of patients that are seen promptly. Those who don’t pay go to the end of the line. It was tactfully written, but the message was clear. She could not afford to keep her practice open unless enough people were willing to pay a premium for faster service and a few minor perks.

  • http://steadfastlutherans.org/ SAL

    The shame is that the health system and the insurance markets did and still need reform.

    However what we got was more corporatist bargain than genuine reform. Hopefully the prior reform can be overturned to such an extent that we can start over with input from both halves of America this time.

  • http://steadfastlutherans.org/ SAL

    The shame is that the health system and the insurance markets did and still need reform.

    However what we got was more corporatist bargain than genuine reform. Hopefully the prior reform can be overturned to such an extent that we can start over with input from both halves of America this time.


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