Monday, December 13, 2010

Virginia judge rules individual mandate unconstitutional, but Obamacare will prevail

As you may have heard, a federal judge in Virginia ruled today that a key component of "Obamacare," the individual mandate, is unconstitutional.

As the Times explains, the judge, Henry Hudson (a George W. Bush appointee), determined that "the law's requirement that most Americans obtain insurance exceeded the regulatory authority granted to Congress under the Commerce Clause." (However, he "declined the plaintiff's request to suspend the act's implementation pending appeal, meaning there should be no immediate effect on its rollout.")

I wrote about this case back in August, when Hudson ruled against the Obama Administration's request that it be dismissed.

A few thoughts:
-- Republicans, needless to say, are celebrating the ruling and reiterating their call for repeal of the Affordable Care Act. As Steve Benen notes, however, the individual mandate was a Republican idea:

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. [Bob Dole incorporated the individual mandate into his reform plan in '94.] 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.

As late as last year, Sen. Chuck Grassley stated publicly that "there [was] a bipartisan consensus to have an individual mandate."

This is about cheap politics. Republican pollsters no doubt told GOP officials that the mandate is a potential vulnerability to the signature Democratic polity priority, so that's where the party is focusing its attention, hoping that the public simply doesn't pay attention to the fact that they're attacking their own idea.

-- Simply put, the individual mandate is essential if health-care costs are to be kept down. If there is no requirement that people buy insurance, only those who are sick (or otherwise at risk) will buy it, driving costs ever higher. You need healthy people (including young adults), people less likely to make claims, to buy into group coverage to make that coverage affordable for those who otherwise can't afford it. I realize that this is separate from the question of the constitutionality of the individual mandate, but it's obvious why the mandate is necessary and why both parties have promoted it as a core and essential component of reform.

-- This would appear to be a significant defeat for Obamacare, but we need to remember that two previous rulings (in Virginia and Michigan) found the individual mandate constitutional. This was a partisan judge ruling against it. As the Times reports, Hudson "has a long history in Republican politics in Northern Virginia." The two judges who ruled in favour of the mandate are Clinton appointees -- perhaps more partisanship, though it's hardly clear, and not necessarily the case, that Democratic appointees ruling for the mandate were acting in a partisan way (that is, perhaps they were ruling on the merits of the case).

Moreover, this case -- Cuccinelli v. Sebelius -- was initiated by a crazy Republican, Virginia Attorney General Ken Cuccinelli. 

-- As Ezra Klein writes, Hudson "refused to overrule anything but the individual mandate itself," leaving the rest of the law intact (again, while allowing enactment to proceed in full):

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.

In other words, even a Republican judge (who owns part of a Republican consulting firm that worked against reform) only went so far -- and, at that, not very far at all. And so:

[R]ight 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.

Of course, the Supreme Court is rather conservative and hardly likely to be friendly to Obamacare. Still, there is reason to be optimistic even after this decision.

-- I do not pretend to be a constitutional expert, but it does seem to me that Hudson's ruling was erroneous. The Roberts Court may uphold it, but a sensible, non-partisan court, I suspect, would reject it altogether. As Jonathan Cohn put it back in October (via Benen), "the only way to throw out the mandate would be to reexamine conventional assumptions about the Commerce Clause. That would be a fairly radical move."

For more on this (right-wing) radicalism, see Nick Baumann's excellent post at Mother Jones: "Most legal scholars agree with the Obama administration on this. They believe the commerce clause allows Congress to regulate economic decisions, not just economic activity... Drastically limiting the scope of the Constitution's commerce clause (as Hudson would do) is the slippery slope to the libertarian paradise."

-- As I wrote back on August:

Republicans, whipping up blood-curdling public fury with their lies, like the ridiculous claim that there would be "death panels," drew their battle lines early on. In Congress, they were unanimously against reform, even this modest reform package that for the most part they themselves had promoted back in the '90s as an alternative to Hillarycare and that a Republican governor, Mitt Romney, had implemented in Massachusetts. They required Democrats to fight their way through all sorts of legislative hoops, denying clear majority rule. And once the bill passed, they continued to fight, pledging to repeal it if they took back Congress. But they know better, don't they? Or some of them do. They know that it's a losing issue for them, which is why they fought so hard against passage in the first place. Their electoral success, on this issue as on others, depends on public ignorance, but the public can't be kept in the dark forever.

And so these challenges will go forward, in Virginia and elsewhere, but the law will only become more and more a part of the lives of Americans, like Social Security and civil rights. You never know how SCOTUS will rule, of course, and there's a chance part of the law, if certainly not all of it, could be struck down, but I tend to doubt it. Having lost, Republicans are just flailing about, mired in the stink of their own political and ideological extremism, desperate for validation. One judge may have given them what they wanted, but they won't find any lasting success fighting health-care reform.

Judge Hudson's ruling may be a setback for reform, and perhaps even a fairly significant one, but winning a battle here and there does not mean winning the war.
Obamacare is here to stay.

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  • Please stop using the pejorative "Obamacare".

    By Anonymous Anonymous, at 12:27 PM  

  • I think Michael put it in quotes to show ironic contempt for the term.

    By Blogger Capt. Fogg, at 12:00 PM  

  • Could you please not make yourself part of the right-wing propaganda effort to label the healthcare reform law as "ObamaCare"! Republicans have used labels of that kind repeatedly to manipulate public opinion, with Fox for example ordering its journalists to always refer to the public option as the "government option, or with Bush Sr. labeling tax cuts as "tax relief." It is a deliberate propaganda tactic- all so that merely using their words for them, even to argue for health care reform, evokes an image (of some personal fetish of Obama, rather than the effort to solve a specific set of problems that it really is, and biases any discussion in their favor. Please don't help their propaganda effort. Call it by an accurate or neutral term - not "ObamaCare."

    By Anonymous Anonymous, at 10:59 PM  

  • See the comment from Capt. Fogg above.

    By Blogger Michael J.W. Stickings, at 1:28 AM  

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