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Federal Judge Finds Individual Mandate Unconstitutional

(photo: Diane M. Byrne)

A federal judge in Virginia has ruled that the individual mandate, a key component of the health care law, is unconstitutional – a decision that, if upheld, could ultimately unravel much of the law.

This is at least the 14th ruling on the Affordable Care Act that has come through the courts so far, and most judges have dismissed cases seeking to throw out the law on constitutional grounds, even as regarding the individual mandate. However, Judge Henry Hudson ruled in a case brought by Virginia Attorney General Ken Cuccinelli that the individual mandate “exceeds the constitutional boundaries of congressional power.” Government lawyers had ruled that the individual mandate is constitutional under the interstate commerce provision, but Hudson said that “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.”

Anticipating appellate review, Hudson did not block implementation of the law for the time being, particularly because the mandate doesn’t go into effect until 2014. Nevertheless, this is a setback for the law, though it was expected, as Hudson is a very conservative jurist. Everyone looking at this figured that the Supreme Court would ultimately decide on the question about the individual mandate. The major lawsuit is being decided in Florida – this was Cuccinelli’s suit that he took independently of that effort. But whatever comes out of the courts, you can expect it to be consolidated and moved upward to the highest court.

As for what happens if SCOTUS affirms this ruling, it’s not as simple as assuming that the law could go forward by just jettisoning the mandate, however. The drafters of the law did not include a severability clause that would have allowed the whole law to easily go forward without elements ruled unconstitutional. Depending on the rulings, a judge could actually take down most, if not all, of the law. However, Hudson said specifically in his ruling that any portion of the law which does not rest on the individual mandate could proceed.

The outcome may get fast-tracked to the Supreme Court:

The Virginia suit would ordinarily next be heard by the Fourth Circuit Court of Appeals. Cuccinelli has indicated, however, that he would like to bypass the appeals court and move directly to the Supreme Court, an extraordinary legal maneuver that would require the high court to decide that the case held extreme public importance and intervene immediately.

He has asked the White House to sign on to the request, arguing they, too, would benefit from a quick resolution to legal questions surrounding the law. However, it is not clear whether the White House will agree.

Two other cases, from Detroit and Lynchburg, Virginia, are already in the midlevel appeals courts. In both those cases the judge upheld the law’s constitutionality.

Virginia has passed a law barring any mandated purchase of health insurance, so that is a constitutional question which must be decided relatively quickly.

…a copy of the ruling is available here.

CommunityThe Bullpen

Federal Judge Finds Individual Mandate Unconstitutional

A federal judge in Virginia has ruled that the individual mandate, a key component of the health care law, is unconstitutional – a decision that, if upheld, could ultimately unravel much of the law.

This is at least the 14th ruling on the Affordable Care Act that has come through the courts so far, and most judges have dismissed cases seeking to throw out the law on constitutional grounds, even as regarding the individual mandate. However, Judge Henry Hudson ruled in a case brought by Virginia Attorney General Ken Cuccinelli that the individual mandate “exceeds the constitutional boundaries of congressional power.” Government lawyers had ruled that the individual mandate is constitutional under the interstate commerce provision, but Hudson said that “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.”

Anticipating appellate review, Hudson did not block implementation of the law for the time being, particularly because the mandate doesn’t go into effect until 2014. Nevertheless, this is a setback for the law, though it was expected, as Hudson is a very conservative jurist. Everyone looking at this figured that the Supreme Court would ultimately decide on the question about the individual mandate. The major lawsuit is being decided in Florida – this was Cuccinelli’s suit that he took independently of that effort. But whatever comes out of the courts, you can expect it to be consolidated and moved upward to the highest court.

As for what happens if SCOTUS affirms this ruling, it’s not as simple as assuming that the law could go forward by just jettisoning the mandate, however. The drafters of the law did not include a severability clause that would have allowed the whole law to easily go forward without elements ruled unconstitutional. Depending on the rulings, a judge could actually take down most, if not all, of the law. However, Hudson said specifically in his ruling that any portion of the law which does not rest on the individual mandate could proceed.

The outcome may get fast-tracked to the Supreme Court:

The Virginia suit would ordinarily next be heard by the Fourth Circuit Court of Appeals. Cuccinelli has indicated, however, that he would like to bypass the appeals court and move directly to the Supreme Court, an extraordinary legal maneuver that would require the high court to decide that the case held extreme public importance and intervene immediately.

He has asked the White House to sign on to the request, arguing they, too, would benefit from a quick resolution to legal questions surrounding the law. However, it is not clear whether the White House will agree.

Two other cases, from Detroit and Lynchburg, Virginia, are already in the midlevel appeals courts. In both those cases the judge upheld the law’s constitutionality.

Virginia has passed a law barring any mandated purchase of health insurance, so that is a constitutional question which must be decided relatively quickly.

…a copy of the ruling is available here.

…if you look at the actual language of the ruling, you see that Hudson would only “sever … Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501.” Section 1501 only appears in the table of contents and in the title of the section. So Hudson’s ruling is very narrow, only throwing out the individual mandate. You can argue that the insurance industry would re-negotiate the bill, and seek a reinstatement to the pre-existing condition exclusion, for example, but that’s not what Hudson mandates at all. And anyway, plenty of states have guaranteed issue, with no exclusion for pre-existing condition, and their systems have not collapsed.

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David Dayen

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