Top of the Ticket

Political commentary from Andrew Malcolm

« Previous Post | Top of the Ticket Home | Next Post »

Federal judge diagnoses Obama healthcare law as unconstitutional in part: Reactions from all over


In Virginia, Federal District Judge Henry Hudson on Monday declared part of the massive Obama healthcare legislation unconstitutional. It is but one step in a long and evolving legal challenge to the new law by dozens of states and groups.

While striking down a key provision of the measure, Hudson, an appointee of President George W. Bush, rejected a Virginia request to stay implementation of the law, which will take years.

It is the most serious blow struck against Obama's signature health legislation that....

...consumed so much of Congress' 2009, while polls showed Americans were far more concerned about the economy and jobs. Voters passed their verdict on that behavior by the Democratic majorities on Nov. 2, turning the House of Representatives over to Republicans in a historic swing of seats.

Arguments in similar legal challenges to the healthcare restructuring will be occurring in courts elsewhere, as early as Thursday in Florida.

Judge Hudson saw the issue as clear cut and wrote decisively:

Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause power to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. Despite the laudable intentions of Congress in enacting a comprehensive and transformative healthcare regime, the legislative process must still operate within constitutional bounds.

Eventually, the case will end up you-know-where before the nine you-know-whats, two of whom now are Obama nominees.

Coincidentally, ABC News released a new poll on the controversial healthcare law. Results showed public support, never very high, has fallen to its lowest level since passage, 43%. Opinion then divides on what to do about it: repeal parts, repeal all or wait and see.

Here is the court's complete 42-page decision. Don't overlook a key part of Hudson's decision in Footnote 13 at the bottom of Page 36:

If allowed to stand as a tax, the Minimum Essential Coverage Provision would be the only tax in U.S. history levied directly on individuals for their failure to affirmatively engage in activity mandated by the government not specifically delineated in the Constitution.

House Speaker-elect John Boehner:

Today’s decision is an encouraging sign for families and small business owners who have revolted against President Obama’s job-killing health care law and called for its repeal. Instead of appealing this decNew House Speaker John Boehner of Ohioision, the Obama Administration should work with Congress to repeal this job-killing health care law so we can replace it with reforms that lower costs and protect jobs.
This would be the easiest way to keep ObamaCare from costing our economy more jobs. Republicans have made a pledge to America to repeal this job-killing health care law, and that’s what we’re going to do.

  The individual mandate at the heart of ObamaCare puts the federal government in the business of forcing you to buy health insurance and taxing you if you don’t. This is unwise, unaffordable, and as we have argued all along, unconstitutional.
If Washington thinks it can get away with this kind of power grab, it will think it can do anything.  Cash-strapped states should carefully weigh the benefits of investing time and resources in ObamaCare’s implementation now that its central mandate has been ruled unconstitutional.

Arizona governor jan BrewerArizona Gov. Jan Brewer:

I was pleased and encouraged to see Judge Hudson’s ruling in Virginia today rejecting the provision of ObamaCare that requires individuals to purchase health insurance.  The individual mandate provision is an unprecedented and unconstitutional application of the Commerce Clause, as Arizona and19 other states also contend in the multistate, bipartisan suit filed in the United States District Court of Florida.

We are hopeful that Judge Vinson will come to the same conclusion regarding this and other intrusive provisions of ObamaCare following oral arguments on the merits of the lawsuit in Florida on Thursday.

Federal health care mandates, beginning with eligibility mandates in February 2009 and extended with the ObamaCare individual mandate and other mandates this year, have resulted in a roughly $1 billion Medicaid funding shortfall for the State of Arizona.  Advocates of ObamaCare have failed to produce a single specific proposal to pay for the state obligations of the new federal mandate. I will continue to pursue all legal remedies to end the unaffordable federal mandates and once again allow states the flexibility to create sustainable Medicaid programs.

Nevada Gov.-elect Brian Sandoval:

As I’ve noted before, I see the constitutional question created by the health care bill as monumental in all future matters involving state’s rights. Today’s ruling provides support for the claim that the federal health care legislation is at least, in part, unconstitutional. I believe the constitutional questions involved in the federal health care legislation deserve a hearing by the United States Supreme Court.

Sen. Jim DeMint of South Carolina:

Today's decision makes it clear that President Obama and Democrats overreached and violated the Constitution in their rush to pass a federal takeover of our health care system.

Virginia Attorney General Ken Cuccinelli made a compelling case that Obamacare violated the constitutional rights of Americans by forcing them into a government program against their will. The Constitution neither grants Congress nor the President the power to compel every American to buy government-approved health insurance.

The unconstitutional individual mandate is the centerpiece of the health care takeover and today's ruling should signal the beginning of the end for Obamacare. Congress must listen to the American people and fully repeal Obamacare immediately. Then we can move to real solutions that make health care more affordable and increase choices that keep patients in control over their own care.

Minnesota Gov. Tim Pawlenty:

I am encouraged by today's ruling that Obamacare's individual mandate compelling Americans to involuntarily buy health insurance is an unconstitutional power grab by the Federal government. Forcing citizens to purchase a good or service is a clear infringement on our personal liberties and must be stopped.

While today's ruling is a victory for individuals' rights, I'm also hopeful that courts will recognize that Obamacare is also a threat to states' rights. Last month, I joined the federal lawsuit in Florida that challenges Obamacare's individual mandate and invokes the 10th Amendment in vigorous defense of states' rights. In August, I issued an executive order directing Minnesota state agencies to reject participation in Obamacare unless required by law or consistent with existing state policy. I encourage governors to stand up for their states' rights and do what we can to stop Obamacare.

Stephen B. Presser, professor of legal history, Northwestern University:

It will be some time (probably a year or two) before the United States Supreme Court finally decides this issue, but those (like Speaker of the House Nancy Pelosi, and perhaps the President of the United States himself) who ridiculed those of us who still championed a limited Constitution and pointed out that Obamacare went too far have now been vindicated.

When the speaker was told there was a powerful argument that Obamacare was unconstitutional, she reportedly asked ‘Are you serious.’  She and those who fail to understand our Constitutional scheme have now been taught a lesson by a wise Virginia federal judge.

Karen Hamed, executive director of the National Federation of Independent Businesses, referring to its lawsuit in Florida:

Judge Hudson's decision is one more reason why we are cautiously optimistic that Judge Vinson will strike down the individual mandate and uphold our Constitution.

Sam Kazman, general counsel Competititive Enterprise Institute:

Judge Hudson’s ruling is a welcome reaffirmation of the Constitution’s limits on the federal government.  Those limits are totally at odds with the Obama Administration’s attempt, in its individual mandate provision, to transform a person’s decision not to buy health insurance into an activity subject to Congress’s power over interstate commerce. Because this ruling comes only days before the anniversary of the Senate’s rushed Christmas Eve vote on Obamacare, it is, quite frankly, a great way to start off the New Year.

Robert Gibbs' White House briefing excerpt:

Robert Gibbs        GIBBS:  Mr. Feller.

Q. Two topics.  On the health care ruling, the passage here in which the judge says that the unchecked expansion of congressional power to the limit suggested by the minimum coverage provision would invite unbridled exercise of federal  powers. 
And this is not about -- just about health care, but it’s about individual right to choose to participate.  Doesn’t this vindicate or validate a central argument of skeptics, which is that despite your intentions you can't require people to participate in a law like this?

MR. GIBBS:  Well, I think a couple of important things for perspective, Ben.  First and foremost, obviously the administration argued on the other side of this case and disagrees with the ruling.  I do think it is important to keep some perspective about the fact that there are now 20 or so cases making their way through federal courts. 
This was the Eastern District of Virginia; 115 miles away, the Western District Court of Virginia ruled November 30th to uphold the same provision that the Eastern District and its judge had ruled against.  So I think the other court -- the Eastern District of Michigan on October 7th ruled in favor of the law as it was passed. 

So, again, we disagree with the ruling.  Obviously the individual responsibility portions of the Affordable Care Act are the basis and the foundation for examining and doing away with insurance company discrimination on behalf of preexisting conditions.  Obviously, without an individual responsibility portion in the law, you could not find yourself dealing with preexisting conditions because the only people that would likely get involved in purchasing health care would be the very sick.  And obviously, that would be enormously expensive.

Q   So given that it is so fundamental to the whole law and you have these different court rulings, is it clear to you that this is going to go to the Supreme Court?  And if so --

MR. GIBBS:  I am not a legal scholar, Ben.  I think it is safe to say that because there are several other cases in the pipeline and because of -- again, you’ve got disparate court rulings 115 miles away -- that the bill will continue to have its day in court.

I do think it is important that even this judge ruled that the bill continues to move forward in terms of its implementation.  And obviously, the individual responsibility aspects of this legislation weren’t to go into effect until 2014 so there’s some time to work this through.

Q   Well, just to wrap up this part, what gives the White House confidence that ultimately it will prevail if this case continues to go to the --

MR. GIBBS:  Well, again, I think -- and I’m certainly not, Ben, a lawyer in terms of the legal arguments that underpinned each of the briefs.  But I would say that challenges like this are nothing new in terms of laws that have come before the courts in the past in which our position has prevailed.  We’re confident that it is constitutional.  And quite frankly, of the three courts that have rendered decisions on this question, two have ruled in our favor.

-- Andrew Malcolm

What is already legally mandated is to click here to receive Twitter alerts of each new Ticket item. Or follow us @latimestot. Our Facebook Like page is over here. We're also available here on Kindle now. Feel free to share this item with friends and family with the ReTweet buttons below. No appeal possible.

Photos: Lauren Victoria Burke / Associated Press (Boehner); Associated Press (Brewer); Associated Press (Gibbs).


Comments () | Archives (8)

The comments to this entry are closed.

The Republicans are the ultimate hypocrites!

How do we pay for health care reform ?

**  How do you pay for tax cuts for the wealthy  ?

1.     First attempt : threatening Social Security and Medicare Cut through the deficit panel.

2.     Second attempt : holding the desperate Hostage, say, by the Ransom.

**  Inaction cost, $9trillion over the next decade, ((Some of CBO analysis : While the costs of the financial bailouts and economic stimulus bills are staggering, they are only a fraction of the coming costs from Social Security, Medicare, and Medicaid. Over the next decade, the Congressional Budget Office (CBO) projects that each year Medicaid will expand by 7 percent, Medicare by 6 percent, and Social Security by 5 percent. These programs face a 75-year shortfall of $43 trillion--60 times greater than the gross cost of the $700 billion TARP financial bailout)).

Over the duration of healthcare debate, using the preliminary cost analysis of CBO, the reps opposed the public option stubbornly, but after the release of final score, they have been defiant on the referee.

The nonpartisan Congressional Budget Office estimates that :
Inaction cost in relation to health care reform totals $9trillion over the next decade. 
Reform will reduce the federal deficit by $143 billion over the next 10 years and as much as $1 trillion during the following decade.

Obamacare is already in intensive care.Cant wait to see the next cave-in.Hsro601 should put his mouth and money on the election of a pres.
Bernie Sanders.

Thank you , Sir.
For not allowing our basic freedoms to be trampled by those who would hope to destroy our Constitution, and our Nation.

Universal Health Care was a good, ethical idea, as millions of Americans are without health care and this, of course, is a death sentence as funding no longer allows widespread healthcare for the poor.
Unfortunately, this good idea was poorly thought out. First, by creating many new requirements for existing healthcare, Obamacare made existing health insurance much more expensive, so that many of those who already have healthcare may have to lose it (I myself now pay much more for my insurance due to this). Second, by making it a legal requirement for all citizens, the constitution was clearly violated. Third, doing this thru deficit spending as we're trying to recover from a recession was the worst possible time to attempt this. Fourth, raiding medicare to pay for it was poor policy and political suicide. The whole plan is dead in the water, like it or not.

I firmly believe that these state level attacks of the Obama health plan are nothing more than politicians trying to gain national notoriety and thereby position themselves to run for higher office. It is so unforgivable that a few would hold the core human needs of many hostage for entirely political purposes. This is a matter of morality. Funny I don't hear the traditional proponents of morality speaking to this issue. Why not?

@ jerry girley: you ask why the traditional proponents of morality are not speaking to this issue.

i don't know to whom you are referring by "traditional proponents of morality." however, i do know this much about morality: while it is a component of human compassion and charity to voluntarily provide assistance to the poor, it is not a moral-ethical requirement to do so. it is, however, a moral-ethical requirement that you refrain from using physical force (violence) or deliberate and malicious deceit against another person, except in self-defense. you must scrupulously honor your neighbor's fundamental rights to life, liberty, and justly acquired property. that is the technical definition of harmlessness. we must, each of us, be harmless, walk harmlessly upon the face of the planet. this is the basis of any rational moral-ethical code.

further, you must refrain from authorizing your government to do in your behalf what this moral-ethical code forbids you from doing. if you authorize your government to kill, maim, assault, kidnap, enslave, steal from, extort from, defraud, or otherwise harm your neighbor, it is the same as if you had done it yourself. your government must operate by the same moral-ethical code that defines your harmless walk upon the planet.

you may, as an act of compassion or charity, donate your money to the poor. but you may not use theft, fraud, force, the threat of force, extortion, or any other forbidden activity to compel your neighbor to likewise donate to the poor. thus, you may not authorize your government to do it, either. you may not compel your neighbor to perform a charitable deed, neither acting as an individual, nor by acting through your government.

when a government imposes a compulsory tax upon the citizens to fund any socialist program designed to aid the poor, it commits extortion in imposing and collecting the tax. it is the same as if you had committed the extortion yourself. if you advocate such socialist programs funded by taxes, including the health care bill that is at issue, you are violating the moral-ethical code.

yes, government-funded health care is indeed a moral issue. the only moral position on the issue is to oppose government-funded health care. from that position, you may and should advocate and participate in voluntary efforts to assist the poor, on the principles of compassion and charity. but you may not use extortion to compel your neighbor to participate.

thank you for your time,
best regards

It is really important that we get out elected representatives to commit to the repeal pledge. I just sent my Congress Rep and Senators the repeal pledge page and asked them to sign it. We need to separate the men from the boys!

Hold Congress Accountable: Take the Pledge or Walk the Plank!
The Repeal Pledge (dot) com.


Recommended on Facebook


In Case You Missed It...

About the Columnist
A veteran foreign and national correspondent, Andrew Malcolm has served on the L.A. Times Editorial Board and was a Pulitzer finalist in 2004. He is the author of 10 nonfiction books and father of four. Read more.
President Obama
Republican Politics
Democratic Politics



Get Alerts on Your Mobile Phone

Sign me up for the following lists: