Or is it?
The New York Times notes that "President Obama is beating opponents of his signature health care bill two to one in federal court. Of the three district court judges who have ruled on the merits of constitutional challenges to the landmark Affordable Care Act, two have sided with Mr. Obama. But from a political standpoint, the only case that really matters is the one Mr. Obama lost on Monday".
Let's start with the district court judge in Virginia. He was appointed by George W. Bush. That should be enough to justify calling the man a partisan judicial hack, and he is.
As Talking Points Memo reminds us, this federal judge own "a sizable chunk of Campaign Solutions, Inc., a Republican consulting firm that worked this election cycle for John Boehner, Michele Bachmann, John McCain, and a whole host of other GOP candidates who've placed the purported unconstitutionality of health care reform at the center of their political platforms. Since 2003, according to the disclosures, Hudson has earned between $32,000 and $108,000 in dividends from his shares in the firm (federal rules only require judges to report ranges of income)."
So let's not even pretend, out of bipartisan politesse, that this is an honest judicial ruling. It has a slightly more than scant basis in law, but its origins are very smelly. Look at the prosecutor, Ken Cuccinelli, Virginia's attorney general. Turns out he was one of Campaign Solutions' clients.
That's not the only problem with Ken Cuccinelli.
During his time in office, Cuccinelli has proven to be quite the crusader. The Washington Post profiled him in July, after he challenged the EPA's authority to regulate greenhouse gasses and told public universities they couldn't ban discrimination based on sexual orientation. As Nicole Allan reported in August, Cuccinelli issued a ruling on abortion clinics (stating they should be regulated as hospitals) that was basically designed to put them out of business.
Through the push to overturn health reform, Cuccinelli has made it a part of his political identity. His political website, www.cuccinelli.com, bears the in-browser header "STOP THE MANDATE: Join Attorney General Ken Cuccinelli," and the whole thing is built around a petition to support his lawsuit, through which Cuccinelli gathers names and email addresses to solicit political donations.
What is the basis for the challenge to the law? The question revolves around whether it's constitutional to require Americans to pay for health insurance. Randy Barnett, a Georgetown law professor who filed an amicus brief supporting Virginia's challenge to "Obamacare" believes the mandate is unconstitutional.
Judge Hudson’s ruling that the individual insurance mandate is unconstitutional is a milestone in the legal process of deciding whether Congress has the power to command every person in the United States to enter into an economic relationship with a private company.
Until 2010, the only mandates ever imposed on American citizens pertained to their citizenship: register for the draft and serve if called, sit on a jury, file a tax return, respond to the census. In the U.S., one cannot even be commanded to vote.
If economic mandates like this one are allowed, however, Americans will be demoted from citizens to subjects. They will have to obey any commands that Congress deems convenient to its regulation of interstate commerce.
Yale Law's Jack Balkin looks at the flaw in Hudson's ruling.
... Congress cannot regulate uninsured individuals, Judge Hudson explained, because these individuals are not doing anything when they fail to buy insurance -- yet they are borrowing money, purchasing drugs, or visiting emergency rooms instead.
This is pure sophistry. Such arguments are reminiscent of the constitutional struggles over the New Deal, when the Supreme Court's conservative majority argued that no matter how great an effect labor strikes had on the national economy, Congress could not regulate working conditions because their effects on interstate commerce were only indirect. Judge Hudson's decision is yet another example of a long line of formalist jurisprudence that is blinkered to reality.
Judge Hudson's other major argument was that Congress cannot justify the individual mandate under its powers to tax and spend for the general welfare. The individual mandate is a tax imposed on people who do not purchase health care; it is part of the Internal Revenue Code and is collected by the I.R.S. However, Judge Hudson argued that Congress had no power to pass the individual mandate under the General Welfare Clause because Congress used the word "penalty" and not the word "tax."
This is, if anything, even worse sophistry, a sort of constitutional game of Simon Says...
So yes, the Hudson/Cuccinelli/Campaign Solutions decision is an exercise in partisan hackery. Still, anyone interested in the ramifications of the maligned "mandate" might want to read additional views of where "regulation of health care" can take us. And whether the Supreme Court will decide the fate of health care, and whether, for example, we already have some notable "regulation" of health care in the form of Medicare.
