The judge who could kill Obamacare
U.S. District Court Judge Henry E. Hudson
Virginia Attorney General Ken Cuccinelli took Obamacare to court today in U.S. District Court in Richmond. Judge Henry Hudson, a Bush appointee and former U.S. Attorney in the high-profile ‘Rocket Docket’ in the Eastern District of Virginia is a very solid judge. Many Virginia lawyers, including yours truly and Doug Mataconis, practiced before him when he was a Circuit Court judge in Fairfax County. I agree with Doug that regardless of the outcome of the ruling itself, it will be very well thought out. To put it bluntly, Judge Hudson is no slouch.
David Sherfinski at WaEx has the details from the oral argument today.
A federal judge on Thursday heard opening arguments in Virginia’s lawsuit against the federal government over the high-profile health care law that took effect in March.
Judge Henry E. Hudson said he would likely issue a ruling within 30 days.
The federal government has moved to dismiss the suit brought forth by Virginia Attorney General Ken Cuccinelli on the grounds that it has the authority to enforce the law under the Commerce Clause in the Constitution.
Ian Gershengorn, a deputy assistant U.S. attorney general, said health insurance is different from other products because everyone needs medical care at some point. Even a healthy person can get hit by a bus, and “in this country we don’t allow a person to die at the emergency room door,” he said.
But Cuccinelli has maintained the federal government overstepped its bounds in mandating that people buy health insurance.
“The government can’t draft an unwilling citizen into commerce just so it can regulate him under the Commerce Clause,” E. Duncan Getchell,Jr., solicitor general of Virginia, argued Thursday.
The ruling will likely be appealed to the U.S. Court of Appeals for the 4th Circuit, the most conservative appellate bench in the country. If you opposed Obamacare and got to choose the judge and the Circuit in which to have the case heard, you could do a lot worse than the Virginia federal courts. But of course, Ken Cuccinelli already knew that.
UPDATE:
Well, this is a pretty good question.
Hudson, a 2002 appointee of then-President George W. Bush, asked probing questions of both sides, but at times he appeared to express sympathy with Virginia’s case.
“Give me an example. Give me an example,” Hudson demanded of Gershengorn at one point, asking him to cite a time when individuals had been required by the federal government to buy a private product. “Where?”
Gershengorn responded that health care is unlike other products because everyone eventually consumes it. He said Congress was merely trying to regulate how it is paid for.
Which, of course, doesn’t answer the question.
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I hate to admit it, but you’re right. I’m not a laywer, but it seems pretty clear to me that it cannot be constitutional to force citizens to buy a certain product or service (in this case medical insurance) from private companies. That’s why socialists like me wanted the federal government to go full monte and extend Medicare to every U.S. resident regardless of age. That way indigent folks get basic subsidized health care, at the same time there’s nothing to stop better off people such as yourself from purchasing supplemental insurance from private companies. Obama should have gone for that approach, but considered it too radical. Instead, his compromise solution may well, as you note, be struck down in court.
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In response to another comment. See in context »Hello yalensis,
The constitution gives the Federal government the authority and power to require individual citizens to joint the armed forces, to fight, to kill, and to die. It has been doing so since the first draft was enacted during the Civil War. It also gives the Federal government the power to take money from individual citizens (taxes) as well as property (imminent domain). If the Federal government can do all of that, is health care reform really such a stretch?
In response to another comment. See in context »Article I, Section 8 of the Constitution provides that Congress has the power:
The 16th Amendment specifically states:
So yes, health care is a stretch.
In response to another comment. See in context »Mr. Dupray,
I did not cite Article 1, Section 8 as the basis for my argument. Many states already require insurance for a variety situations. For example, in order operate an automobile, many states require the owner to own automobile insurance. To build houses on flood plains, many states require flood insurance. None of these provisions has ever been overturned based on any constitutional argument.
In response to another comment. See in context »Those are privileges, not rights. If you don’t want to buy the insurance you can’t drive or build the house. Obamacare requires you to purchase health insurance solely because you are alive in the United States. It is a huge difference.
In response to another comment. See in context »No state requires any homeowner to carry flood insurance. The lender, being a private entity, requires home owners in flood areas to purchase flood insurance in order to protect their (the lender) interest in the proper. Once your house is paid off you can drop your flood insurance if you want.
Not all states require auto insurances (though the majority do). However, that is a STATE issue not a FEDERAL issue. States have much more power than the Federal government, or at least they used to and the Constitution was written to insure they do. Also states only require liability auto insurance to cover damages down to others. No state requires you must get full coverage.
In response to another comment. See in context »Mr. Dupray,
Actually, while it is indeed commonly stated that “driving is right not a privilege” it is in fact not established, there is no legal precedent establishing that driving is not a right. However it is well established that the constitution protects the right to travel. In Shapiro v. Thompson, 394 U.S. 618 (1969) SCOTUS held “Constitution guarantees the right of interstate movement” and Justice Stewart noted that “it is a right broadly assertable against private interference as well as governmental action. Like the right of association, … it is a virtually unconditional personal right, guaranteed by the Constitution to us all.” Similarly, in United States v. Guest
383 U.S. 745 (1966) SCOTUS held there was “The right to travel freely to and from the State of Georgia and to use highway facilities and other instrumentalities of interstate commerce within the State of Georgia.”
If the right travel exists, it seems entirely logical to conclude that an individual might enjoy the right to choose among all legally available forms of transport. I would suggest that the right to drive a car has as strong case, even if it is as yet untested.
The distinction between “right” and “privilege” is also misleading. A legal privilege is a kind of right. For example, the 14th amendment in Section 1, Clause 2 states “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. This is again relevant to travel. In Saenz v. Roe 526 U.S. 489 (1999) Justice Stevens wrote “Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases (1873), it has always been common ground that this Clause protects the third component of the right to travel. Writing for the majority in the Slaughter-House Cases, Justice Miller explained that one of the privileges conferred by this Clause “is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.” So the distinction between a “right” and “privilege” is probably meaningless in this context.
All of that being said, it is irrelevant to the issue at hand. Even if one were to hold that driving a car is not a right or a privilege, that does not address the constitutionality of requiring insurance to exercise to use of a piece of property (an automobile). If I buy a house, do I not have a right to live in it? If I buy a car, why should the state have the power not allow me to drive it, for any reason, but especially because I do not have insurance.
I would argue that the state does indeed have reasonable cause to limit the rights of automobile owners, e.g. requiring registration to own, requiring a license to operate, and requiring insurance. This is, as far as I can tell, unchallenged.
In response to another comment. See in context »agree!
In response to another comment. See in context »if you want to give something, give!
so much bad in the plan, better to cancel the whole thing
Why did we get obamacare? Simple: the health insurance companies are insolvent just like the TBTF banks, and had to be bailed out as well. Only it couldn’t be called a bailout, because the 100+ million people who they’ve been robbing would want to know what happened to all the premiums they paid. Then the dirty fuckers would have to admit they gambled it all away at the casino (er, I mean Wall Street, of course) and we’d end up with riots in the streets, which is EXACTLY what this fading republic needs.
And before you even ask, yes, Virginia, their is a Santa Claus. I hope this judge snaps obamacare back so hard Nancy Pelosi’s kids get black eyes. I hope the entire health care system in this country is so goddamned broken in a couple of years that you actually have to bring a fucking chicken to the doctor to get a flu shot. And when the masses turn on you right-wingers like starving werewolves, be sure to remind them that it was their proletariat, socialist ways that brought them so low.
In response to another comment. See in context »BTW, don’t forget to shout a bunch of incoherent nonsense about John Galt when they put the noose on…
Nice inflammatory title. I am a lawyer but have not read the briefs in this case obviously. Likely the most extreme outcome here is that the judge would simply find the mandate unconstitutional and not the entire law. Excising the mandate would not kill the entire legislation but simply cause Congress to go back and find an alternate solution. I think the Dutch or Fins have a better path, which does not penalize those that refuse to get insurance through the system monetarily but rather does not allow those people to opt into the system for five years or so (i.e. the insurance companies are not required to provide insurance to these people if they suddenly get sick and try to opt in). My guess is that most people would get insurance in this situation and the few that opt out better stay healthy.
Mr. Dupray,
Conservatives wail all the time about “judicial activism” whereby liberal judges overturn the intent of congress through judicial fiat. Should the honorable Henry Hudson overturn “Obamacare” would that not be the very embodiment of “judicial activism” just from a conservative?
You are right that one form of judicial activism is when a judge ignores the plain language of a statute and decides it means whatever they want. But more classically and more importantly, it is judicial activism to allow the government to do things for which it has no Constitutional authority.
So if Judge Hudson decides that Congress had no Constitutional authority under the Commerce Clause to force Americans to buy a retail product from a private company, that is not judicial activism. It is the quintessential role of a judge to check the Constitutional overreach of the other one (or two) of the co-equal branches.
We are talking about individual liberty, which cannot be taken away by Congress, no matter how awesome the legislation. That is what the judge is supposed to defend.
In response to another comment. See in context »Mr. Dupray,
Your wrote:”It is the quintessential role of a judge to check the Constitutional overreach of the other one (or two) of the co-equal branches.”
Just so, whether the judge is liberal or conservative. This is why I not impressed with all of the conservative pundits and politicians wailing about “judicial activism”, it is just a code phrase for a ruling that they do not happen like. It all depends on whose ox gets gored.
In response to another comment. See in context »Yet in my memory, most of the cases of ‘judicial activism’ being popularly decried in the conservative media were in cases much like this one. Take the most celebrated, Roe v Wade. Clearly an example of SCOTUS acting to protect civil liberties, yet conservatives decry this decision. Seems like yet another example in a long line of cases of outrageous conservative hypocrisy.
As far as the specifics of the case, pregnant women already find themselves bound by law to seek professional medical help. We have to buy auto insurance if we want to drive. Why no conservative outrage over government telling people what to do there? And where is the conservative outrage over the erosion of liberty in post 9/11 America? The fact is that there is political hay to be made by attacking Obamacare.
You talk about conservatism, but conservatism has no meaningful ideology, because its real aims are politically untenable in modern America. It is packed with lies and hypocrisy, and economically sustained with corporate propaganda. It is incoherent in nature, an empty shell filled with dozens of discrete ideologies, some downright vile, even treasonous, most eschewing reason and knowledge in favor of fundamentalism. It’s made up of a collection of usually earnest, poorly educated believers who are used for the political and economic gain of the corrupt. And of course this is true of conservatives in both parties, and the awful politics of so-called centrism that wrecks our nation on the shores of bipartisanship.
In response to another comment. See in context »Take the most celebrated, Roe v Wade. Clearly an example of SCOTUS acting to protect civil liberties, yet conservatives decry this decision.
Roe is the classic example of judicial activism. Where in the Constitution does that “civil liberty” appear? I’ll save you the trouble – it’s not there. And the decision cannot be reconciled with the 10th Amendment, which leaves all decisions beyond the limited, finite, and specific federal governmental authority to the states. It is a state issue. Period.
In response to another comment. See in context »Mr. Dupray,
Roe v. Wade 410 U.S. 113 (1973)is based on the fourth amendment which protects the “right of the people to be secure in their persons” and the 14th amendment under the due process clause. A woman’s body is part of her person and is thus protected from unwarranted government intrusion under the fourth amendment. Further, as Justice Stewart noted in writing for the majority, “Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment. It is evident that the Texas abortion statute infringes that right directly. Indeed, it is difficult to imagine a more complete abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas.”.
Roe v. Wade is based on the legal precident set by the SCOTUS in Griswold v. Connecticut, 381 U.S. 479 (1965),[1] wherein the SCOTUS ruled that the fourth amendment created and protected a “right to privacy”. Connecticut law at the time outlawed the use of contraceptives. By a vote of 7-2, SCOUTS overturned the law stating that it violated “right to marital privacy”.
Roe v. Wade is very much rooted in the protection of individual rights against government over reach.
In response to another comment. See in context »David, I understand that that SCOTUS had an argument about how the Constitution contains the right to an abortion. You and I are not debating that. It is whether that argument is based upon the language of the Constitution. In order to call the right to abort a right, they just picked the Due Process Clause and said that abortion falls under the “emanations and penumbras” of the Amendment. That is a euphemism for “we think it should, so it does.” By that logic, which is divorced from any actual language in the document (such as freedom of speech shall not be infringed), one could argue that anything anyone wants to do is a Constitutional right. If you want to smoke pot, why isn’t there a Constitutional right to that under the same logic?
A completely subjective decision not based on the text (which does specify very clearly numerous actual rights) is not the rule of law, it is the rule of men.
Liberals want to be able to tell people what to do. They think they know better. The Founding Fathers said that that is perfectly fine in the states where Liberals constitute the majority. So had SCOTUS simply allowed abortion to fall to the states via the 10th Amendment, like countless other decisions, some states would ban it, some would not, and most would be in the middle.
Instead, the judicial activism of the Roe Court deprived millions of people in states that disagreed with the ruling the right to self-determination to choose the laws under which they live. It was very clearly an undemocratic event in our history.
You have to separate the issue in question from partisan politics because everybody can come up with something they think should be the law or against the law. It is the integrity of the framework we are concerned with here which has as its overarching purpose the most freedom for the most people.
In response to another comment. See in context »Mr. Dupray,
You wrote (below):”That is a euphemism for ‘we think it should, so it does.’”
That is exactly what judges do, they read the law, read precedent, examine the facts and decide “We think it does (or does not)”. That IS the function of the judiciary.
In response to another comment. See in context »[...] This post was mentioned on Twitter by Bill_Dupray, Jon Pessah. Jon Pessah said: http://trueslant.com/williamdupray/2010/07/01/the-judge-who-could-kill-obamacare/ [...]
Is Obamacare unconstitutional? VOTE
http://www.youpolls.com/default.asp
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Actually there are many examples of when the federal government has required individual citizens to buy a product from a private company. The most powerful is the Militia Act of 1792 — passed by the Second Congress which included a high portion of the drafters of the Constitution and signed by George Washington himself. Under the “necessary and proper clause” of Article 1, section 8 (the very same clause which the fate of the health insurance reform rests on, it required citizens to buy a musket, some musket balls and a half pound of gun powder. The power to create an Army is an Article 1 section 8 power just as the Commerce power is. Both are limited only by the “necessary and proper clause.”
Unless Washington and the Founders were wrong, that clause has allowed Congress to direct citizens to buy from private companies for 218 years.
Being a patriot and a Constitutionalist is hard work and sometimes it requires us to understand that out feelings about what the Constitution means and what it actually means may not be the same.
Henry Hudson is a fine man. I knew him well at one point. He will rule as the Constitution requires and then it is our duty as citizens to willingly obey that Constitution.
The precedent: The 1792 Militia Act required every male of military age to purchase a musket and ammunition at their own expense.
Hm…. that’s a good point about the muskets.
In response to another comment. See in context »And I do remember once hearing a Supreme Court justice (I don’t remember which one) being interviewed on the radio, and he said that they had to buy their own robes. The robes weren’t provided to them when the joined the court, they actually had to go to a uniform store and buy them with their own money. So I guess that could be a precedent too…
Obama is urging lenders to modify mortgage loans according to his new foreclosure bailout plan. Based on certain borrower criteria, lenders are able to make adjustments to the terms of your mortgage loan which could.
government loan modification
[...] the federal government can mandate the purchase of health insurance by the American population. States are arguing that this is an invasion of commerce that is not of an inter-state [...]
Also to Bill:
On a side note, there are dozens of court decisions that rule in favor of driving being a right and not a privilege.
http://www.arkenterprises.com/ritepriv.htm
“The use of the highways for the purpose of travel and transportation is not a mere privilege, but a common and fundamental Right of which the public and the individual cannot be rightfully deprived.”
Chicago Motor Coach vs. Chicago, 169 NE 22?1;
Ligare vs. Chicago, 28 NE 934;
Boon vs. Clark, 214 SSW 607;
25 Am.Jur. (1st) Highways Sect.163