Barack Obama | Health | Ken Cuccinelli | News

Judge Declares Health Care Reform Provision Unconstitutional

A federal district (activist) judge in Virginia, appointed by George W. Bush, has declared a key provision of Obama's recently passed health care reform unconstitutional: "The insurance mandate is central to the law’s mission of covering more than 30 million uninsured because insurers argue that only by requiring healthy people to have policies can they afford to treat those with expensive chronic conditions."

The NYT adds: Ken_cuccinelli

The opinion by Judge Hudson, who has a long history in Republican politics in northern Virginia, continued a partisan pattern in the health care cases. Thus far, judges appointed by Republican presidents have ruled consistently against the Obama administration while Democratic appointees have found for it.

That has reinforced the notion — fueled by the White House — that the lawsuits are as much a political assault as a constitutional one. The Richmond case was filed by Virginia’s attorney general, Kenneth T. Cuccinelli II, a Republican, and all but one of the 20 attorneys general and governors who filed a similar case in Pensacola, Fla., are Republicans. Other lawsuits have been filed by conservative law firms and interest groups.

The two cases previously decided by district courts are already before the midlevel courts of appeal, with the Detroit case in the Sixth Circuit in Cincinnati and the Lynchburg case in the Fourth Circuit in Richmond.

The Justice Department, which is defending the statute, is also considering whether to appeal Judge Hudson’s ruling to the Fourth Circuit, which hears cases from Virginia and four other states. That would leave that court to consider opposite rulings handed down over two weeks in courthouses situated only 116 miles apart.

The case is eventually expected to head to the Supreme Court.

You may recall that back in March, Cuccinelli wrote a letter to the state's public colleges encouraging them to abolish policies that prohibit discrimination of gays and lesbians.

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  1. What I find really annoying is all of the right wing columnists and media figures who are loftily declaring that Obama is going to be a one-term "failure" a la Jimmy Carter. They're doing everything in their power to ensure that that statement becomes a prophecy.

    In other right-wing news to make you gag on your cornflakes, George Will has a jaw-dropping column out there right now commenting on ten years after Bush vs. Gore and the Supreme Court decision. It's as piously self-serving, condescending, and subjective as you'd expect.

    Posted by: Dback | Dec 13, 2010 1:13:50 PM

  2. It was a poorly designed law. Forcing a citizen to buy private heath insurance? If they were going to do it, they should have passed a single payer government plan or just added uninsured to Medicaid after means testing. No one should be surprised this half a**ed law has been struck down. It probably means now that the Massachusetts law [almost identical to Obamacare] will be successfully challenged and struck down. Currently, the state of Massachusetts is routinely fining people thousands of dollars because they haven't brought heath insurance as the state law requires. Many of them simply can't afford to buy it.

    Posted by: ratbastard | Dec 13, 2010 1:35:42 PM

  3. I only hope that after this Republican-inspired health care plan is ruled unconstitutional we can actually move toward a more progressive approach, as should have been done initially.

    Posted by: Wes | Dec 13, 2010 1:37:36 PM

  4. Obamacare and the Massachusetts healthcare law are in reality backdoor boondoggles to the multi billion dollar private health insurance and by extension heathcare industries. It's the same way most government housing subsidies are backdoor boondoggles to private real estate and construction industries. The federal and state governments are HEAVILY lobbied by special interests groups on behave of these huge industries. They often end up basically writing the laws that benefit them. When are people going to wake up and snap out of it?

    Posted by: ratbastard | Dec 13, 2010 1:43:38 PM

  5. Sorry, but I agree with the judge.

    No matter how laudable the goal, you can't require me to spend that kind of $$ and purchase insurance from a private insurance company.

    My partner and I both have a joint policy, but during some tough times, we had none. Not everyone can afford it, has a need for it, or even wants it. And that's nobody's business but ours and our doctor's.

    We never needed health care reform. We need HEALTH INSURANCE reform. Give them all notice that in 5 years they will be converted to non-profit status with no shareholders. Remove the driving force of dividends from the equation, then you'll see real altruistic health care.

    Posted by: el kabong | Dec 13, 2010 1:44:35 PM

  6. I truly believe that labeling a judge "activist" simply because we don't like his/her ruling makes us no better than the right wing bigots who label a judge activist when they rule in favor of the GLBT community.

    Posted by: peterparker | Dec 13, 2010 1:57:05 PM

  7. I think states should be given the option to opt out of the new health care laws that will only be in effect in 2014. But at the same time, if any state chooses to opt out of it, then the federal government can choose to cut all federal funding to the state. As simple as that. Cuccinelli can whore himself out to get money to fund his own state. Deal?

    Posted by: gayalltheway | Dec 13, 2010 2:05:11 PM

  8. I hope Andy was kidding with the parenthetical "activist" label. I may not agree with, but respect the rulings of judges (with some extreme exceptions *cough*CitizensUnited*cough). I expect conservatives to do likewise, and consider them crybaby sour grapers when they cry foul with their "activist judges" bullshit.

    In any event, this scheme to require citizen to purchase private insurance with their own, after tax money reeks of unconstitutionality, and we hardly needed a judge to tell us that.

    Posted by: Zlick | Dec 13, 2010 2:08:32 PM

  9. If Obama pushed for the public option this would not be an issue.

    Wrong time for Obama. If only he had Hillary's balls..

    Posted by: Public Option | Dec 13, 2010 2:24:10 PM

  10. One thing that distinguishes the legal decisions on this issue and those on same-sex marriage/CU is the political tendencies of the judges. In our cases, the judges who some call "activist" have been appointed by presidents of both major parties and approved by the Congress under both parties. There is no obvious slant in the rulings in our favor. Among those cases we lost, there is a skew to the Republican side, but it's not as stark as in the health-care cases to date.

    No, I'm not tossing the "activist" charge. There are many other plausible reasons for the skew, chief among them that the plaintiffs, being from all around the country and able to file anywhere they want, purposely picked judges they thought would lean their way. Also, the lower federal bench is packed with "conservative" appointees these days, thanks to Dubya's eight years following Clinton's "moderate" terms.

    Posted by: BobN | Dec 13, 2010 2:27:37 PM

  11. All the more reason to have a public-option/single-payer health care plan with competent public health clinics focused on preventative health care. It works for the VA. It would work for the American public.

    However, what this decision does expose is the hypocrisy of the republicons who scream about "activist judges" when it comes to a perceived "liberal" judgment but ignore that blatant activism of virtually every conservative judge appointed by republicon presidents since G.H.W. Bush.

    The American legal system is now crawling with vermin lawyers graduated from such august institutions as Liberty University, Regents University and other private, for-profit colleges that are funded by evangelical extremists.

    They are the future of American jurisprudence.

    Posted by: jamal49 | Dec 13, 2010 2:39:43 PM

  12. This is great decision. Just like Lawrence V Texas, Perry V Schwarzenegger, this case is about basic fundamental RIGHTS.

    You libs need to know that you CANNOT MANDATE personal behavior of the citizens.

    There is no RATIONAL BASIS for mandating health care insurance and FORCING people to buy a product, much less forcing people NOT to recognize or join in a gay marriage.

    Please respect the decision of the Court. Just like how we demand that people respect the same court when they rule in our favor.

    SCOTUS will no doubt affirm this decision.

    So when conservatives start throwing that activist judge mambo jumbo, we can point to this particular case. Ted Olson has said in the past that the Feds were going to lose this case, he was right. And I do trust him on this and on Prop 8.

    The courts are there to PROTECT the interests and the CONSTITUTIONAL rights of the individual, not the government.

    Posted by: pepa | Dec 13, 2010 2:50:39 PM

  13. If the votes had been there for a public option in the Senate then they would have had that in the Senate bill. At the eleventh hour Sen Lieberman said he would not support the bill with a public option (his state Conn, is the headquarters for several large insurance companies; wife sits on one of the boards). There were also several other moderate Dem senators who would not support the public option. He got the best bill he could get. It's only a foundation.

    Being an ideological purist is not leadership

    Posted by: Brian in Texas | Dec 13, 2010 2:51:28 PM

  14. Does this mean, Constitutionally, I don't have to buy home or car insurance either?

    All three are designed to cover expenses incurred when accidents happen ...

    Posted by: Rodney Wollam | Dec 13, 2010 2:55:32 PM

  15. Cave in, sell Out.... seems to be a big part of this administration

    Posted by: John Normile | Dec 13, 2010 3:10:32 PM

  16. "Does this mean, Constitutionally, I don't have to buy home or car insurance either?"

    Yes because you are not FORCED to buy a car or a house.

    There is no escaping your body.

    Posted by: pepa | Dec 13, 2010 3:26:26 PM

  17. "Cave in, sell Out.... seems to be a big part of this administration"

    On gay issues YES. I wouldn't say "cave in" more like HYPOCRITICAL and down right delusional.

    Here Obama did not cave in, he got what he wanted, a health care bill passed that he mostly agreed with.

    Posted by: pepa | Dec 13, 2010 3:28:41 PM

  18. the mandate without public option was a huge give-away to private big biz insurance

    ironic a repub busts Obama's being repub lite and selling out america to the oligarchs

    Posted by: | Dec 13, 2010 3:43:58 PM

  19. PS

    @public option

    don't kid yourself, repub lite Hillary would have triangulated and sold out america to big biz just like repub lite obama

    though she wouldn't have compounded the pain with whispering sweet nothings in our ears like obama does

    both are conservedem rpub lite sell outs to big biz, one though speaks sweet sweet empty words while causing pain

    Posted by: | Dec 13, 2010 3:46:39 PM

  20. The states can mandate things that the Federal govt. cannot, such as mandatory education of minors and vaccines. However, it's amazing that they even got standing in this case. It's not clear how they got standing. However, with standing there are no real rules in practice, so go figure. This is going to get messy.

    Posted by: anon | Dec 13, 2010 4:38:52 PM

  21. MSTROZFCKSLV, I said balls like Hillary - I didn't say her ideas. She get fired up and doesn't back down in confrontation. Obama should take lessons on how to be a strong woman and stand up for something.

    Posted by: Public Option | Dec 13, 2010 4:42:36 PM

  22. Pepa -- I am fined by the state of california if I am in an accident and don't carry insurance.

    I am happy for people not to insure if they so choose -- but should they expect care at a facility once they become sick and need care -- we fine them on top of billing them the expense when they do.

    so how is that? Alternately, let's make those lilly-livered congress people give us universal health care -- since no inbetween position seems to make big repub/corporations "happy"

    Posted by: David B. 2 | Dec 13, 2010 4:45:22 PM

  23. Then they need to let people die in front of the ER. That should send a message for everyone to understand. And if you survive, you should pay twice the amount.

    By the way, you are not required to buy insurance, you just need to pay a tax otherwise.

    Posted by: Blub | Dec 13, 2010 5:39:22 PM

  24. "Pepa -- I am fined by the state of california if I am in an accident and don't carry insurance."

    Auto insurance is only required if you drive a vehicle, in which case you CAN CHOSE not to drive. In health you cannot chose whether to get sick or not.

    Having auto insurance is different especially in the situation you describe:

    1) The state of California is mandating that law, NO WHERE in the history of this nation has the FEDERAL government ever mandated anyone to purchase any insurance.

    2) In reality you are talking about DRIVER insurance, not AUTOMOBILE insurance. This the only type of insurance that is required for you to drive to PROTECT other drivers who YOU hit. Its called financial responsibility (or liability insurance in your state). You are not required to buy auto insurance that protects YOUR OWN car or passengers.

    3) What is worse? Getting a moderate fine or be sued by the other driver for THOUSANDS of dollars (lets say 50,000 dollars) for the accident that YOU caused. You then file for bankruptcy and the other driver is left paying the bills for an accident YOU caused.

    These are obviously WAY different circumstances from socialized healthcare and mandating health insurance.

    Since liberals are making "slippery slope" comparisons with auto insurance and health insurance lets say that since they want to eliminate "pre-existing conditions" then under the "slippery slope" comparison we can juxtapose that clause to auto insurance as well and anybody that gets into a car accident can buy a policy AFTER the fact and make the insurance company pay for the accident. Now think it about it. Does that make sense?

    Posted by: pepa | Dec 13, 2010 5:43:58 PM

  25. Just look at PEPA's blog to see that he's a delusional racist with an obsession about liberals.

    And the mandate wasn't even a liberal proposal.

    Posted by: Blub | Dec 13, 2010 5:53:44 PM

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