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Health reform dealt blow

Tue., Dec. 14, 2010

Law’s mandate to purchase insurance unconstitutional, federal judge rules

WASHINGTON – A federal judge on Monday ruled unconstitutional a key provision of President Barack Obama’s landmark health care overhaul law, moving its mandate that Americans buy health insurance coverage one step closer to a Supreme Court showdown.

U.S. District Judge Henry Hudson, a Republican appointee serving the Eastern District of Virginia, said that Congress had exceeded its constitutional power when it imposed the health insurance mandate.

“Despite the laudable intentions of Congress in enacting a comprehensive and transformative health care regime, the legislative process must still operate within constitutional bounds,” Hudson wrote.

The insurance mandate – which would compel even healthy young Americans to obtain coverage or pay a penalty – is considered key to the plan’s financial feasibility.

Should the courts ultimately reject the mandate, it would be “very difficult if not impossible” for the rest of the overhaul to work, said a senior administration official, whom the White House allowed to speak to reporters only on the condition of anonymity.

Hudson’s 42-page ruling that the insurance mandate exceeds the Constitution’s Commerce Clause doesn’t address the rest of the sweeping health care bill. The insurance mandate itself isn’t scheduled to take effect until 2014.

Virginia Attorney General Ken Cuccinelli, who filed the challenge to the mandate that triggered Hudson’s ruling, applauded the decision even as he anticipated an appeal.

In a video posted on his website, he said that “if the government can order you to buy health insurance, they can order you to buy a car, to buy asparagus, even cauliflower … or join a gym. The power is expandable almost without limit if this is allowable and constitutional.”

The Justice Department is expected to appeal Hudson’s ruling.

“We’re confident that it is constitutional,” White House spokesman Robert Gibbs said.

Some 20-odd cases have been filed overall challenging the law.

White House officials and advocates of the law emphasized that Hudson’s ruling is no more important than two recent rulings by federal judges that upheld the mandate.

In October, U.S. District Judge George Steeh in Michigan ruled that the insurance mandate fit within congressional power under the Constitution’s Commerce Clause. On Nov. 30, U.S. District Judge Norman Moon in Lynchburg, Va., ruled the same.

The Commerce Clause says that Congress can “regulate commerce … among the several states,” although the Supreme Court has struggled for years to decide what activities this covers.

“There is a rational basis for Congress to conclude that individuals’ decisions about how and when to pay for health care are activities that in the aggregate substantially affect the interstate health care market,” Moon declared in his 54-page opinion.

President Bill Clinton appointed Steeh and Moon. President George W. Bush tapped Hudson.

The dueling judicial decisions are feeding expectations that the nation’s high court ultimately will be asked to weigh in on the sprawling law, which aims to extend coverage to 30 million uninsured Americans, including those with pre-existing conditions.

“We’re talking about a couple of years,” predicted Andrew Koppelman, a Northwestern University law and political science professor, noting that “it will take maybe a year for the court of appeals to resolve this, and then another year for it to reach the Supreme Court.”

Republicans, poised to take control of the House of Representatives next month, seized on Monday’s ruling to bolster their calls to repeal the entire legislation, but that’s unlikely.

“Now that a federal judge has shown the individual mandate in Obama care to be unconstitutional, it’s time to repeal it lock, stock and barrel,” said Rep. Mike Pence, R-Ind.

Outgoing House Speaker Nancy Pelosi, D-Calif., said that her party “will stand firm against attempts to roll back the law.” Even after Republicans take over the House, Democrats’ continued control of the Senate and White House make outright repeal virtually impossible for at least two years.

Steeh’s ruling in Detroit is being appealed to the 6th U.S. Circuit Court of Appeals, based in Cincinnati. The 6th Circuit covers Kentucky, Michigan, Ohio and Tennessee.

An appeal of Hudson’s ruling would go to the Richmond, Va.-based 4th U.S. Circuit Court of Appeals, generally considered among the nation’s most conservative. Conflicting appellate court rulings fall to the Supreme Court to resolve.


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