Monday, December 13, 2010

Federal Judge: Part Of Health Care Law Unconstitutional - UPDATED 2X

Read about it at TPM. They promise updates as details become available.

UPDATE: This is questionable judicial ethics at best. The federal judge in the case, Henry E. Hudson, owns between $15k and $50k in a GOP political consulting firm that worked against health care reform... the very law on which he issued this ruling. What he did may be legal (or not), but it stinks to high heaven, and I suspect it's a hell of a smell. Who appointed Hudson? why, George W. Bush, of course.

I detest the framing of the current health care law. I even deplore the provision Hudson ruled unconstitutional. But Republican presidents, by saturating the judiciary with relentlessly partisan judges and Justices, have performed a wholly unethical act that propagates additional unethical acts ad nauseam. You know if a judge appointed by a Democrat had made an analogous ruling, Fox Noise would be screeching about it 24x7.

UPDATE: Apparently Judge Hudson's decision has flaws quite apart from any conflict of interest he may have. Here's Brian Beutler of TPM:


"I've had a chance to read Judge Hudson's opinion, and it seems to me it has a fairly obvious and quite significant error," writes Orin Kerr, a professor of law at George Washington University, on the generally conservative law blog The Volokh Conspiracy.

Kerr and others note that Hudson's argument against Congress' power to require people to purchase health insurance rests on a tautology.

The key portion of the ruling reads:

If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Kerr notes that this is all wrong. The Necessary and Proper Clause allows Congress to take steps beyond those listed in the Constitution to achieve its Constitutional ends, including the regulation of interstate commerce. Hudson's argument wipes a key part of the Constitution out of existence. Kerr says Hudson "rendered [it] a nullity."

And according to other legal scholars, there may be other errors in the ruling. None of this says the law is wholly constitutional, but there is liable to be quite a scramble now to determine its constitutionality one way or the other. SCOTUS, here we come...


  1. The mandate is unConstitutional and relabeling a fine as a tax doesn't hide what's going on.

    This is why Medicare-for-All is the only Constitutional way to go, even if it didn't save billions of dollars, which it also does.

    I told people it was going to happen. You can only bend things so far before they snap.

  2. Bryan, it looks unconstitutional to me, but this judge is such a piece of work that I think we may be better off if he resigns or is impeached. Sigh.



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