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Posted by on Dec 13, 2010 in Breaking News, Economy, Health, Law, Politics, Society | 0 comments

Federal Judge Says Individual Mandate Is Unconstitutional: A Blogger Roundup

Although right-wing pundits are rejoicing at today’s decision by a federal judge in Virginia that the requirement to purchase insurance in the new health care reform law violates the Constitution (and Logan Penza has the legal analysis on this), Ezra Klein observes that the ruling may be good news for supporters of health care reform as well:

The real danger to health-care reform is not that the individual mandate will be struck down by the courts. That’d be a problem, but there are a variety of ways to restructure the individual mandate such that it doesn’t penalize anyone for deciding not to do something (which is the core of the conservative’s legal argument against the provision). … The danger is that, in striking down the individual mandate, the court would also strike down the rest of the bill. In fact, that’s exactly what the plaintiff has asked Hudson to do.

Hudson pointedly refused. “The Court will sever only Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501.” That last clause has made a lot of pro-reform legal analysts very happy. Go to the text of the health-care law and run a search for “1501.” It appears exactly twice in the bill: In the table of contents, and in the title of the section. There do not appear to be other sections that make “specific reference” to the provision, even if you could argue that they are “directly dependent” on the provision. The attachment of the “specific reference” language appears to sharply limit the scope of the court’s action.

Hudson will not have the last word on this. Anthony Kennedy will. The disagreements between the various courts virtually ensure that the Supreme Court will eventually take up the case. But right now, the range of opinions stretch from “the law is fine” to “the individual mandate is not fine, but the rest of the law is.” That could create problems for the legislation if the mandate is repealed and Republicans block any attempts at a fix, but it’s a far cry from a world in which the Supreme Court strikes down the whole of the health-care law.

John Hinderaker declares that “Obamacare” has been “ruled unconstitutional,” which clearly runs counter to what the text of the ruling actually says:

Federal Judge Henry Hudson ruled this morning that Obamacare is unconstitutional because the federal government has no authority to require citizens to buy health insurance or pay a penalty. Multiple lawsuits over the Democrats’ health care bill are pending in different venues–Judge Hudson sits in Virginia–and presumably it will be years before a final decision comes out of the Supreme Court, assuming the law remains in effect.

The main impact of today’s ruling, and any similar future rulings, likely will be to keep the issue of repeal alive. Scott Rasmussen finds that support for repeal has risen to 60 percent, with only 34 percent opposing repeal. The Democrats assumed, I think, that if they rammed Obamacare down our throats in spite of the bill’s well-known unpopularity, it would become a fait accompli and voters would become resigned to it. So far, at least, that hasn’t happened, and adverse rulings like Judge Hudson’s will add fuel to the pro-repeal fire.

Hinderaker contradicts his own spin in the first sentence — “the federal government has no authority to require citizens to buy health insurance or pay a penalty” clearly does not mean the entire law (which is what John means by the childish “Obamacare”) has been invalidated. Here, ideology overrules common sense, not to mention the plain meaning of the text of the judge’s ruling.

Hot Air’s Ed Morrissey has a more measured response (no surprise there).

It’s worth remembering that the roll call of Republicans who supported health care reform with an individual mandate before they opposed it includes most of the current leadership in Congress:

This nonsense from Sen. Orrin Hatch (R-Utah) was especially jarring.

“Today is a great day for liberty,” said Hatch. “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.”

Look, I get that Hatch is worried about facing a primary challenger in 2012, and on health care policy in general, he’s been a pretty shameless hack. But while he’s applauding this victory for “liberty,” I hope it’s not rude to point out that Orrin Hatch literally co-sponsored a health care bill with an individual mandate.

Maybe he was against liberty before he was for it?

The record here may be inconvenient for the right, but it’s also unambiguous: the mandate Republicans currently hate was their idea. It was championed by the Heritage Foundation. It was part of Bob Dole’s 1996 presidential campaign platform. Nixon embraced it in the 1970s, and George H.W. Bush kept it going in the 1980s.

For years, it was touted by the likes of John McCain, Mitt Romney, Scott Brown, Chuck Grassley, Bob Bennett, Tommy Thompson, Lamar Alexander, Lindsey Graham, John Thune, Judd Gregg, and many others all notable GOP officials.

My personal favorite is Grassley, who proclaimed on Fox News last year, during the fight over Obama’s plan, “I believe that there is a bipartisan consensus to have an individual mandate.” (A year later, Grassley signed onto a legal brief insisting that the mandate is unconstitutional.)

The Two Jonathans at TNR gives us their takes on why today’s ruling is neither unexpected nor cause for panic.

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