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.

Feed This post's comment feed


  1. In typical fashion, the Left blindly rushed to defend Obama's health insurance corporation bailout without bothering to understand what it was they were actually defending. Let Obamacare die. We need REAL health care reform: single payer!

    Selling out health care reform

    December 9, 2009

    - - - - - - - - - - - - - - - - -

    The battle for health care reform is heating up in Congress. The House has already passed one bill, and the Senate is debating another version. But as Dr. Andy Coates explains, both bills will fail in solving the health care crisis--and, in fact, place a greater financial burden than ever on working people.

    Coates is a member of Physicians for a National Health Program (PNHP) [1], co-chair of Single Payer New York [2] and a steward in the Public Employees Federation in New York. He talked to Ashley Smith about what's wrong with the health care proposals in Washington.

    - - - - - - - - - - - - - - - - -

    WE'VE HEARD lots of hype from the Democrats about the House and Senate bills. What's in these two bills, and what will they mean for workers?

    THE CRUX of each bill is compulsory private health insurance. The government will use its power to compel every individual to purchase private health insurance, or enroll in Medicaid. The bills don't make private health insurance affordable; they propose to subsidize private insurance premiums for those who live on modest means.

    For example, the House bill will subsidize the premiums of those whose income is 400 percent of the federal poverty level and below. Taxpayers would pay for this. But it would still mean that people who earn 200 percent to 400 percent of the federal poverty level would have to pay 8 to 12 percent of their income for private insurance premiums, or pay a fine and stay uninsured.

    That would be the so-called "choice." For the uninsured, paying for expensive insurance would amount to an enormous wage cut. And then they'll get skimpy coverage, with high co-pays, high deductibles and all those other onerous and unworkable measures that come with very expensive private insurance.

    ONE OF the justifications that Obama and the Democrats used for these bills is that they will control the cost of health care. Are they telling the truth?

    TOTAL HEALTH care spending will not be brought under control by either of these bills. It will not bend the cost curve. As health care costs continue to increase dramatically, the crisis of unaffordable health care will continue, for ourselves and our families, with increased out-of-pocket costs, new mandatory premium payments and ongoing medical bankruptcies, will remain acute.

    WHAT ABOUT the so-called public option? What impact will it have on the health care system?

    THE PROPOSALS for the public option as they stand are meaningless from the point of view of reform, and ridiculous as a way to influence the insurance market. There are so many compromises, it might be renamed the incredible shrinking public option. And also, as a TV talking point, it has often eclipsed a focus on what's really in the bill.

    But I think that there's more fundamental point. The public option was never a proposal for workable reform. It's actually a neoliberal concept. Marie Gottschalk, a professor at the University of Pennsylvania, has written an article in the new Socialist Register 2010 entitled "U.S. Health Reform and the Stockholm Syndrome."

    She argues that when it comes to health reform, American reformers are like hostages who identify with, and even defend, their captors. I heard her speak in New York, where she said it seemed that if a window opened to permit real health reform, many "reformers" wouldn't even try to climb out.

    WHAT DO you mean that the public option is in fact a neoliberal proposal?

    THE PUBLIC option idea is basically that the insurance market will will magically meet our needs, as long as there is consumer choice and fair competition. This is the ideology popularized by Ronald Reagan. If only a government agency could be added alongside these giant, highly profitable insurers with their oligopoly control, then the marketplace would magically reform itself. Does that make any sense?

    The insurance market rewards insurers that avoid paying for the care of sick. The public option would have to play by the same rules and compete on the same market. So in the best-case scenario, the public option would tend to enroll the sickest patients, and, in turn, would have higher, not lower, expenses. The Congressional Budget Office recently made this very point in a report on the House bill.

    So a successful public insurer next to the private companies might instead put us on the fast track to permanent two-tiered health care, a deplorable trend already well underway.

    But most likely of all, if enacted, the public option would turn out nationally just as it has in Maine--a failure, not a reform. In Maine, a state-funded public insurance called DirigoChoice has been around since 2003. Since then, it has enrolled fewer than 10 percent of the uninsured, it has not done a thing to control costs, and this year, it faces a fiscal crisis that threatens its future existence

    WHAT IMPACT will these bills have on the health care crisis?

    IMMEDIATELY ON the passage of the bill, very little would change. There is some insurance regulation, but we should note that this is regulation the industry itself proposed.

    For instance, the insurance companies will have to stop rescissions--arbitrary cancellation of policies that come usually with the "coincidence" of the patient getting sick. But they can still cancel policies if the policyholder commits "fraud"--or if you simply can't pay your premiums. And over the decade, the insurers stand to gain tens of millions of new customers and hundreds of billions in taxpayer subsidies.

    So I think that passage of the bill is virtually irrelevant to the everyday crisis. The main features in the House bill are not scheduled to start until 2013, and those in the Senate bill won't start until 2014. Then it still won't lessen disparities, or guarantee access to everyone, or improve the quality of care, or reduce costs. In fact, the main things in the bill have already failed at the state level, including the public option, including mandatory insurance.

    FOR MOST people, health insurance will still be tied to their jobs, right?

    YES. WHEN you lose your job, you will still lose your health insurance. Even worse, illness can lead to job loss and loss of insurance. Not just for the patient. If someone in your family gets very sick, the illness can cause you to miss work, too--going to appointments, to chemotherapy, waiting after surgery, coming home from the hospital, going to the pharmacy, going back to the hospital.

    In such situations, people often lose their jobs in the United States. That's the purpose of the Family Medical Leave Act. But even so, in our insane system, people lose their health insurance because they have no paycheck. These cruelties will remain a fact of life. Can we swallow such a bitter pill with a bit of tonic that more of the people who lose their jobs will now be eligible for Medicaid? I don't think so.

    WOULD IT be better if no bill passes than one of the proposals in Congress today?

    SINGLE PAYER New York, the coalition that I am a co-chair of, had a steering committee discussion a few months back. It was our opinion at that time that it would be better to keep arguing for singe payer, and not take a position on a bill that hadn't come out. More recently, Single Payer New York put out an unequivocal statement that recommends a "no" vote. We have also applauded Rep. Eric Massa of western New York for his principled vote against the House bill.

    Personally, I think we should embrace any dialogue that advances the grassroots, kitchen-table debate about health care in this country.

    The costs and hassles of health care are breaking working-class families. Prescriptions are not affordable, appointments can't be had, our insurance is tied to our job or our spouse, millions of people are impacted by bankruptcy and Medicaid is a disaster. Too often, a personal crisis, health care amounts to an accumulating social crisis. The Democratic bills now in the Congress are no solution.

    THE SINGLE-PAYER movement had attracted Democratic support in the House for a bill known as HR 676 that would have established a single-payer system. Leaders among these Democrats promised that there would at least be votes on single payer. Why didn't they deliver?

    FORGIVE ME for the long story here, but what happened this year was really remarkable and very positive. How many people are on full-time paid staff for single payer in the whole country? Less than a dozen or so, if that? Yet, there was a year of sustained mobilization, starting before Obama's election, that grew and grew, from local, volunteer organizing.

    The AFL-CIO convention passed a resolution this fall that endorsed single payer and the broader concept of social insurance, building on support for HR 676 within the unions. And then the Democratic Party leadership had to maneuver and spin all year long, trying to keep single payer off the table. These are a testament to the strength and energy of the grassroots inside and outside the AFL-CIO.

    Back at the end of July, New York Congressman Anthony Weiner and six other HR 676 co-sponsors, brought into the Energy and Commerce Committee an amendment to substitute the text of HR 676 for the House bill. The leadership needed to get the main bill out of committee that day, the day before the summer recess. One day earlier, about a thousand people visited Congress and rallied outside the Capitol for single payer.

    So while Nancy Pelosi and Henry Waxman, the committee chair, didn't want to have a debate on single payer in the committee, neither could they simply push it aside. So Pelosi offered Weiner a deal. If he withdrew the amendment in committee, she would let him put it on the floor of the House for a debate and vote.

    Weiner took the deal, but it was the single-payer grassroots who really called Nancy Pelosi's bluff. We recognized that a floor vote--a losing vote--would be a historic precedent, not just that single payer would get to the floor of the House for the first time, but that the grassroots movement would be the force to put it there. Plus we hoped to see members of the House of Representatives stand for single payer and be counted. We wanted to know who our true friends were, with an eye on the 2010 elections.

    So a campaign of lobbying, picketing and protesting commenced, from dozens of local organizations and a handful of national organizations. It brought to Congress hundreds of thousands of phone calls and faxes and e-mails, maybe millions--far more than anyone would have predicted. Protests grew vigorous. In fact, over 150 people were arrested in nonviolent civil disobedience actions at insurance companies and at congressional offices, including Nancy Pelosi's San Francisco office.

    Weiner, an ambitious guy, jumped in with a bit of pizzazz. He got on television, and at one point turned the tables on the interviewer by asking what it was that insurance companies added to health care. Single payer helped his stature. But the week that the House bill came up, Weiner published a piece on the Huffington Post that was all about the public option, with no mention of single payer.

    Earlier, we had expressed our dismay because he wanted to change some of the HR 676 language to leave out the undocumented immigrants--changing "residents" to "citizens" in the amendment. On the other hand, to his credit, he worked to get his single-payer amendment to the floor up to the very end. And Pelosi never would have negotiated with Weiner without the grassroots heat, charming though Weiner might be.

    In fact, the day before the vote, there was a full-page ad by the AFL-CIO and eight unions, including the California Nurses Association, in Roll Call calling for a "yes" vote on the Weiner Amendment. By this point, the Democratic Party leadership must have been surprised and frustrated that they had to keep finding new ways to keep single payer off the table. We heard rumors that even the White House had helped squelch the amendment vote.

    In a curlicue twist, late on the Thursday before the Saturday House vote, Congressmen Dennis Kucinich and John Conyers together issued a letter saying that the Weiner amendment would be "tantamount to driving the movement over a cliff." A losing vote for single payer on the House floor would hurt the cause, they said.

    Their opinion stood in direct contradiction to the single-payer advocates who saw the efforts demanding the amendment as historic and imperative. Nancy Pelosi must have been overjoyed, for the letter gave her a new excuse to knock single payer off the table.

    Pelosi also made an argument that in retrospect seems like pure chutzpah. She said that if a single-payer amendment came to the floor, she might also have to allow an amendment to restrict abortion rights to the floor. So we were to be mollified by the thought that if the single-payer amendment was withdrawn, at least women's rights would be protected.

    But we know how that turned out. We asked for health reform, and they gave us an abortion ban. Is that the true state of the Democratic Party today? To get the Democrats own "Blue Dog" right wing to vote for "health reform," largely conceived and written by the insurance companies, they had to trade away women's rights? Good grief.

    Meanwhile, Kucinich had another amendment that would make it slightly easier for single payer to be enacted state by state. The Kucinich amendment came through the Education and Labor committee, where Kucinich got it passed with help from Republicans, but it wasn't included in the bill. This amendment, too, was the focus of grassroots action--and is still.

    He has since been fighting to get the state-by-state amendment back into the final legislation, with some success, getting the Progressive Caucus to endorse the idea. After Kucinich voted against bill, he issued a clear and powerful statement explaining his vote by saying the private insurance companies are the problem, not the solution.

    WHAT'S THE lesson of this experience?

    WE JUST found out that Bernie Sanders will put a substitute single-payer amendment before the Senate, with at least two other senators promising to vote for it. But when the dust settled in the House, only two representatives, Dennis Kucinich and Eric Massa, voted against the bill because it wasn't single payer. Two. The rest went with the Democratic Party leadership and voted for the bill--abortion ban and all. Evidently, this is what it means to be a progressive Democrat in Congress today.

    It also tells us that we need to build a bigger grassroots movement. We are learning that the Democratic Representatives--and I daresay the Republicans, too--will respond to a grassroots mass movement, but we have to build that movement. No one will do it for us. As we do so, we must maintain our independence from elected officials. We have to continue to pressure them, sure--but our eyes should be on the grassroots, not the Democratic Party. I think that's the most important lesson.

    We might also remember that single payer will be won when it becomes a mainstream demand. So the goal of the movement should be to make our proposal the litmus test for the entire nation--left, right and center. The whole country simply must have a health system built upon the principle of solidarity. What other kind of society would we want to live in?

    WHAT'S THE way forward for the single-payer movement?

    WHAT WE need above all else is confidence. Our demand is popular, workable and just. We learned this year that there really is a social movement for single payer coming into being. We should be telling our advocates this: if you keep doing what you have been doing, we will win single payer. All year long, we have had the attention of the Congress and the White House. Much as they wanted to, they could not shake us.

    It's really up to us. We can build this movement. The health care crisis will persist in spite of the Democrats' 10-year plan. With unemployment still rising and possibilities for a frank political crisis emerging, we might soon find a situation in which something has simply got to give. We need to learn to articulate broader benefits of single-payer reform as an economic rescue and as personal liberation for working people.

    Our grassroots single-payer movement will also grow by learning to fight on related issues. For example, in Braddock, Pa., the western Pennsylvania single-payer activists have gotten involved in defending a community hospital from closing. The University of Pittsburgh Medical Center--itself an insurance company by the way, and a massive corporation with a millionaire CEO--bought up the health care infrastructure in the area, including Braddock Hospital.

    If we had single payer, we wouldn't have this corporate medicine, building a new hospital in the wealthy suburb and closing the hospital in the old city. If we had single payer, health care priorities would be planned to meet the needs of the community, not the corporate bottom line.

    The single-payer movement needs to join local struggles like this one and articulate how single payer would help solve these problems. That's how we will be able to forge out of a nascent movement a force that can overwhelm the opposition to single payer in Washington, D.C.

    Posted by: Lonnie | Dec 13, 2010 6:41:56 PM

  2. @ Pepa: By that logic, people who don't have insurance shouldn't seek medical help. Real charitable, that.

    Posted by: Rodney Wollam | Dec 13, 2010 6:43:32 PM

  3. If they can force you to have car insurance (and they can) then they can also force you to have health insurance.

    Suppose they taxed everyone instead, and provided them health care. At least this gives people a choice of which insurance to buy.

    I haven't read the case, but on the surface it seems a ridiculous decision, as politically motived as Bush v Gore.

    Posted by: Randy | Dec 13, 2010 8:06:04 PM

  4. good gawd lonnie

    write a book next time, it will be shorter

    Posted by: | Dec 13, 2010 8:24:49 PM

  5. Lonnie,

    For the love of God, man. Next-time:

    3 paragraphs
    3 sentences per paragraph

    Posted by: ratbastard | Dec 13, 2010 11:39:57 PM

  6. I have mixed feelings about this. Obama wants everyone to have insurance so we all can have use of affordable healthcare. On the other hand why should I be forced to acquire health insurance? Why does not the authorities explore medical fees and find out exactly why they are always on the rise? I'm speaking with little knowledge on medical costs but I do know that a machine like a CT Scanner doesn't increase in value over time. It actually decreases over time. So why did the hospital charge me $6000 for a CT Scan? I don't know but we need to figure this healthcare situation fast.

    Posted by: Margarito | Dec 14, 2010 1:36:05 AM

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

    LOL, and you wonder why I have an "obsession" with liberals? Take a gander at your stupid comment and maybe you might know why I really despise your ideology and how demeaning, hateful, you liberals are.

    Posted by: pepa | Dec 14, 2010 3:05:33 AM

  8. "@ Pepa: By that logic, people who don't have insurance shouldn't seek medical help. Real charitable, that."

    I thought that was the problem and why the left is considering this "public option" fiasco.

    But at any rate, the people who do not have health insurance, the majority of them, are young adults (they are presumed not to need insurance and indeed CAN afford it), illegals (most of whom CAN also afford insurance on their own but chose not to buy it),and the super wealthy.

    The poor are already covered either by financial assistance programs of many hospitals, medicaid, state/county run programs, and charities.

    The elderly already have Medicare...

    So what MORE do you want?

    Posted by: pepa | Dec 14, 2010 3:16:44 AM

  9. Why does the government always make things far more convoluted than they need be? Rhetorical question. It's all about back door payoffs to various special interests groups, and of course increasing and/or justifying public sector staffing.

    Do 'poor' people in the U.S. need and deserve decent and affordable heathcare? Yes, and that's what MEDICAID is for. And many 'poor' people in fact get FREE care, even often FREE drug prescriptions. And in addition to Medicaid, there are many publicly subsidized clinics and hospitals.

    MANY of the uninsured in America are uninsured by choice. For the other who aren't poor enough to get free care and/or Medicaid, tax breaks would be logical. Rich people can obviously afford out of pocket costs, or buy their own insurance plan if an employer plan isn't available. The elderly have Medicare and other options. Then there's a massive VA system.

    A big issue now is Obama is syphoning off cash from Medicaid and Medicare to cover Obamacare costs. Ridiculous.

    Finally, it's wrong to force a citizen to buy private insurance. And it isn't comparable to auto insurance. Apples and oranges. Again, it's really nothing more than a payoff to the private health insurance industry and the healthcare industry in general.

    Posted by: ratbastard | Dec 14, 2010 5:36:16 AM

  10. Just because we don't agree with the judge's decision does not make him an "activist" judge. Let's not use the cheap rhetoric of anti-gay bigots.

    Posted by: Arthur | Dec 14, 2010 12:34:41 PM

  11. This will be reversed on appeal. However, the rational isn't without merit, but like all social laws, it's arbitrary...based upon essential vagueness.

    Posted by: TANK | Dec 14, 2010 12:42:57 PM

  12. And yes, arthur, disagreeing with a judge's decision is the only qualification for the title "activist judge". That is all that it means and can mean, as every legal decision ever made or that will ever be made is a matter of interpretation, not true/false. That is why they are opinions.

    Posted by: TANK | Dec 14, 2010 12:46:43 PM

  13. « 1 2

Post a comment


« «Three Gay Discharged Veterans Sue Government in New Federal Court Challenge to 'Don't Ask, Don't Tell'« «