Regulation

Federal Judge Overturns ObamaCare's Insurance Mandate

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A.P. reports that U.S. District Judge Henry Hudson today ruled that the individual health insurance mandate imposed by ObamaCare exceeds the federal government's power under the Commerce Clause. Hudson sounded like he was leaning that way when he heard oral arguments in the case, brought by the state of Virginia, in October. He is the first federal judge, but probably not the last, to conclude that the mandate is unconstitutional.

Hudson's opinion is here. More on the constitutional challenge to ObamaCare here.

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  1. Are You Serious?

  2. Of course, it is unconstitutional, and the whole law should be struck down. Naturally, nothing of the kind will happen.

    1. The Senate forgot to include a severability clause in the version that passed. If one part is unconstitutional, the whole thing is unconstitutional.

      1. Suki, I believe judges get to try to figure out intent. But, in this case, I don’t see how they can say it’s severable.

        1. The subsidies and exchanges and taxes and Medicare cuts are probably severable. The main provisions probably are not.

        2. We most certainly will consider the intent of the Obamacare drafters. But not that of the white, patriarcal, slave-owning founders. Results over process, my dears.

          1. Results over process,

            Or “the end justifies the means.”

          2. Don’t you mean intent over process?

          3. Hey, not all of the Founders owned slaves.

      2. Also, forgot isn’t the right word. Were forbidden by the insurance companies form adding it would be more accurate.

      3. He severed it.

  3. Shit is about to go DOWN… right?

  4. I see no way that they can evenyually rule that the mandate is severable from the rest of the law. It’s one of the main funding mechanisms, and there’s no way the insurance companies would have let their politicians sign off on it without it.

    1. I agree. The individual mandate for all intents and purposes is the core of the entire bill.

  5. Good news today for the American experiment.

  6. LOL, leave it to the Federal Kangaroo courts to mess it all up LOL

    http://www.internet-privacy.edu.tc

  7. So is this good news or bad news?

    If it dismantles the whole law, great! But if it only takes out that one provision, we’re in real trouble. Insurance companies need to cover everybody at any time, but healthy people don’t have to buy insurance? They’re all going to go out of business. Then who will people turn to? You don’t really think they’ll want to pay for their own health care do you???

    1. Bankrupting the insurance companies is part of the plan. Then, everyone will have to turn to the Federal government and it will be free health care and peaches and cream for all!

      1. I’m OK with this. It has to get worse before it gets better. Guillotines are the answer. I wish it weren’t so, but if wishes ever came true that shit wouldn’t have passed in the first place.

  8. the individual health insurance mandate imposed by ObamaCare exceeds the federal government’s power under the Commerce Clause.

    This judge is reading from the wrong playbook. NOTHING exceeds the federal government’s power. If they can ban Fourloko, they can do anything.

  9. A good sign, but it’s too early to rejoice.

  10. I also need to say that the justice department made a big mistake going at it with a two pronged argument. Either it’s a tax or it’s covered by the commerce clause. Trying to have both ways undermines the credibility of your position.

    1. It is a Floor Wax and a Dessert Topping!

    2. Attorneys disagree on whether to argue in the alternative like that. I tend to believe that the very best advocates pick their stronger argument.

      You certainly would go that way with a jury, but theoretically an appellate court can be “sophisticated” enough not to mind argument in the alternative.

  11. On the severability issue:

    (1) The courts have given themselves discretion in how to handle laws that lack severability, so its possible that only that clause will be struck.

    (2) Generally speaking, when lacking a severability clause, the courts will look at how much of the law is intertwined with the stricken provision, and leave the rest.

    I think the logical (read:low-probability) outcome would be to strike all the benefits mandates and other health insurance regulatory provisions, and leave the rest. A fair amount of the law would stand under this approach, but the worst bits would be gone.

    1. I’m reading elsewhere that this ruling asserts that the unconstitutional part (the mandate) may be severed from the rest of the law.

      Ugh.

      1. I’ve also read that this law is likely to implode without the mandate.

        1. Only most of the law. The biggest part being the mandatory issue and community rating provisions. (I.e., must cover everyone and can’t charge people more than others.)

      2. It may well be – they did it with Sarbanes Oxley. Although, it might be easier to trash O’care in its entirety, as the individual mandate and everyone being all in on the gig is sort of a primary pillar of the entire scheme.

    2. As far as your logical conclusion ? I note the government argued the insurance company regs were not severable from the mandate. So, I think it’s reasonably high-probability that if the mandate goes, at least the regs go.

  12. I predict hyperventilating outrage on MSNBC.

    1. That isn’t a prediction that is what they alwys do regardless of the story.

    2. Preemptively shut the fuck up, Rachel Maddow. Lord i am glad i ain’t have cable in my life.

      1. Maddow’s show doesnt appear on any channels I watch. Its bad enough I have to see her commercials.

  13. Wow – a federal judge finds a limit to the Commerce Clause. Ladies and gents, if you take a look out of the windows on both sides of the plane, you’ll notice the edges of time and space coming into clear view. . .

    As for severability – the courts have jinked around on that one in the past – Seen Sarbanes-Oxley tossed around as an example of legislation without severability having portions struck without the entire thing being tossed.

    Still in the prelim rounds on this one – it’s headed for the Supremes. So pull out the 12 side3d dice, and take a long slow drink of 4Loko, and gird your loins, kids.

    1. I just don’t get that mentality. Congress has a duty to pass laws that are within the permitted scope of its powers under the Constitution. If it passes laws that fail that requirement, the laws should be struck down in their entirety.

      One reason for that is to put more pressure on Congress to not violate the Constitution in the first place, but another reason is that a clause that is struck down may be the only reason the law passed. Without the mandate, this thing might never have made it.

      1. Change might to would, and you’re right on.

      2. Yeah, good point.

        Do you think that the idiots who passed this thing were smart enough to realize the mandate wouldn’t pass constitutional muster? Really, that’s the only thing keeping the public option at bay. Only it won’t be an option once the insurance companies stop providing insurance to ONLY sick people. They’ll be medical payment companies instead of insurance companies.

        They probably figured that if it survives as written, great – if not, even better. Me thinks we’re heading for universal guvmint shitty healthcare.

        1. I get the impression the entire thing was designed to be nothing more than a massive bull in the china shop, too. Fuck things up so severely that it makes it easy to claim that the only fix is for the State to step in and run everything. Messier, but a lot simpler than ‘fixing’ the systems currently in place, which any nitwit can screech about being ‘unfair’ in one respect or another.

          1. I think there is some truth to that. What they didn’t count on was losing Congress. In 2009, Democrats deluded themselves into believing they would be in power forever.

            1. I couldn’t believe all of the “Thousand-year Reich!” comments after the 2008 election. Like the yo-yo doesn’t go two directions.

            2. They made the mistake of thinking that people voted “for” democrats when they really voted “against” republicans.

              The reverse can be said of this past election, but I think the republicans understand that (to some degree, at least). Liberals in 2008 really thought it was the second Camelot.

          2. Mythbusters did the Bull in the China Shop thing. Bulls have more agility than you would expect.

            1. heck, Merill Lynch, Pierce, Fenner, Smith, Bean, and Ziggy already did that. Now a bear in a china shop, that would be another matter.

  14. Congress has a duty to pass laws that are within the permitted scope of its powers under the Constitution.

    I thought their only duty was to get re-elected.

    1. That’s true in practice, but that’s not what their rulebook says.

  15. Obamacare was passed to kowtow to the base. If it gets struck down, it’s merely fodder for additional whining that the judiciary is against TEAM BLUE. For the administration, there is no losing proposition. They either get what they want or they get to say TEAM RED punked them, and TEAM BLUE loves hating on TEAM RED even more than getting what they want.

    1. Though it may be Jesse Ventura level conspiracy theory material, from the outset of it all, as the mechanics were even roughly detailed, I’ve gotten the impression that the entire exercise wasn’t to provide health care, but to give the entire system such a kick to the balls that it basically collapses – leaving the door wide open for leftists to screech that the only alternative was for everyone to beg for salvation from the State in the form of universal healthcare run by the government from start to finish. Kind of made me think that a lot of the insurance companies were being run by total idiots looking for a short term cash flow they could scoop into and bail with – because the long term look was not one that appeared sustainable for private companies selling insurance.

      What a fucked up freakin mess.

      1. If the makeup of Congress were favorable (ha, I know, right?) when the whole thing collapses, they wouldn’t approve single payer and we’d have (gasp) a true free market in health care…and lots of gnashing of teeth.

        (makes popcorn)

  16. A.P. reports that U.S. District Judge Henry Hudson today ruled that the individual health insurance mandate imposed by ObamaCare exceeds the federal government’s power under the Commerce Clause.

    Everything else is fair game, it seems, just not this… somehow.

  17. Something tells me the President’s smoking cessation program has suffered a setback. Unless he has just plastered himself with nicotine patches from head to toe.

    1. I heard it was going much better since Billy Jeff took over the hard parts of the job.

    2. It’s hard to keep from lippin’ them cigs with 19 stitches, ya know.

  18. Along with the November election, this is the best news our beleaguered country has had in a while.

    I do wish Judge Hudson could have waited just a little longer though. This verminous Congress still has 18 days left with which to try to ram through a revised bill.

    1. after what happened in November, I would almost relish the current Congress being that dumb.

      1. You know that if anyone on earth would even dare to try it, it’s these scumbags Pelosi and Reid.

        I can already imagine them rushing back to Washington on a plane getting ready to cancel everyone’s Christmas vacation and hold three weeks of all-night sessions.

        1. well, now, thats probably true. Pelosi could say, “We have to re-pass this bill before we can go about fixing it.”

          1. Dont’ worry, President Romney will fix the health care law.

            1. President Romney, i.e. the Obama that Republicans would be willing to work with.

              1. Only some of them, dude, only some of them.

  19. So, how does this work? Is it only struck down within a certain Federal district or all across the country?

    1. Nah, it’ll be like the Emancipation Proclamation. Only people living in areas not under federal jurisdiction or control will not have to buy health insurance.

  20. Relax, ultimately the fate of this bill will be determined by five unelected justices, exactly as the Founders intended.

    1. The Founders didn’t give us 9 Justices of the Supreme Court.

      1. Hence the sarcasm inherent in Tim’s post.

        1. When i was interviewed for my citizenship, eons ago, the guy asked me how many justices on the SCT. Being a smartass I said, “now there are 9”. He gave me a dirty look and said, “the Constitution says 9.” I just nodded. It made my answer to the next question much easier. “Who was president during the civil war?” No smartass answer this time.

          1. You went with Jefferson Davis, right?

          2. Being a smartass I said, “now there are 9”.

            Government employees don’t like smartasses, Bub – or even smart citizens.

          3. Proctor: All right, here’s your last question. What was the cause of the Civil War?

            Apu: Actually, there were numerous causes. Aside from the obvious schism between the abolitionists and the anti-abolitionists, there were economic factors, both domestic and inter–

            Proctor: Wait, wait… just say slavery.

            Apu: Slavery it is, sir.

        2. My meter is definitely off today.

  21. As a lovely little illustrator of the Dems’ hypocrisy, I heard a Dem Congressman earlier today talking about Obama’s tax compromise saying words to the effect of “we should take our time, give everyone time to read the bill and consider what it will do – we shouldn’t rush to get it passed until we know what actually is being proposed.”

    Interesting. When it’s unconstitutional healthcare for all, ram it through and we’ll find out what’s in it once we pass it. If it’s a continuation of tax cuts that have been in place for the past ten years, whoa!! Let’s take it easy there, buckaroo – slow down, cowboy!

    In other news, rain is wet.

  22. I was always very much against the mandate because it was never anything but a gift to insurance companies. I always thought it was unconstitutional, even when I argued otherwise with republitards and crazy libertarians. Actually, I don’t remember any of that — let’s just say that it never happened.

    I still like HCR even without the mandate, but I don’t really think it can be sustainable. Hopefully it will totally break the system and we can finally get to single-payer like we should’ve done in the first place. Because that would be totally constitutional (I’ll argue with you about it if you want).

    Obama should adopt this view, but he won’t, because he is a corporate tool, as evidenced by the tax cuts he just gave to the rich. He’ll just do what the insurance companies tell him to do. It won’t matter much though, after all of HCR is struck down, and that’s what will happen, because the Supremes are also corporate tools. That, along with the fact that Congress is now infested with a load of dirty rethuglicants, leads me to believe that all hope is lost.

    1. Don’t forget,

      HCR was a right wing policy straight out of the Heritage Foundation from the start. Now that it is failing, we can hopefully adopt the single payer system we have needed all along.

  23. Hey, this is really a big fuckin’ deal, Joe.

  24. If forcing people to buy insurance violates the commerce clause, wouldn’t a single payer system also do the same?

    1. Don’t you know this game yet? Single-payer wouldn’t be a commerce thing, it would be a general welfare thing. The commerce clause would’ve been mentioned 0.000000001% as many times as it has been over the last two years if the HCR debate had been about single-payer rather than this weird mandate-dependent system. Every ‘but you are forced to by auto-insurance’ argument would have been replaced with ‘but you are forced to pay into social security’, with arguments regarding constitutionality revolving around the so-called ‘general welfare’ power.

  25. Why do they hate us by passing unconstitutional laws?

  26. While I agree with Judge Hudson’s decision, I cannot agree with his statement that: “Whether the Minimum Essential Coverage Provision, which requires an individual to purchase health insurance or pay a penalty, is borne of a constitutionally-enumerated power, is the core issue in this case.”

    1. Huh? Why not? You disagree that the core issue in the case is whether the individual mandate is authorized by an enumerated power of Congress?

  27. We will not stand idly by as federal judges rule that our health care reform law exceeds the federal government’s power under the Commerce Clause.

  28. Good decision.

    Now, let’s hope the Supreme Court does the same.

  29. 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 required to buy medical insurance? Why does not the authorities look into medical fees and see why they’re always on the rise? I’m speaking with little understanding on medical costs but I recognize 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.

  30. I think the judge was right–this was heard on motions for summary judgement and the other 400 provisions were not involved. The doctrine of severability does not allow the dumping of an entire law in the absence of a severability provision, just all those provisions intertwined with the provision which is struck down. And that is exactly what Judge Hudson has done.

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