Monday morning’s news started this
week, the last full one before the year-end holidays end this year, off with a
bang. The 42-page Memorandum Opinion of
USDC Judge Henry E. Hudson, sitting in the Eastern District of Virginia,
Richmond Division, was issued and filed Monday morning.
In what can only be called a
stunning blow to the Obama Administration, Judge Hudson’s Memorandum Opinion
holds only a portion of the massive Health Care Legislation (officially titled
the "Patient Protection and Affordable Care Act," but known by many simply as
"Obamacare") to be unconstitutional – the essential, and controversial,
ingredient in the legislation which requires millions to buy health
insurance. Judge Hudson’s Opinion calls
this the "pivotal enforcement mechanism" of this "health care scheme," (again,
known officially as the "Minimum Essential Coverage Provision," or simply,
Section 1501 of the Act.)
Enacted and enforced as part of the
Internal Revenue Code (itself a regular topic for revision, but almost an
unthinkably complex task), this Provision requires every US citizen, with some
exceptions, to purchase a minimum level of health insurance for each month
commencing 2014, and, failing that, a penalty will result on each non-complying
citizen’s federal tax return. But, Judge
Hudson was faced with cross-motions for Summary Judgment in this action brought
by the Commonwealth of Virginia (some 25 states in total apparently have
actions pending), the procedure which legally ‘cuts to the chase’ seeking to
dispense with the need for a protracted trial of the matter by truly massive
filings (think, NYC telephone-book-sized), which demonstrate that there is no
remaining triable issue of fact, hence, no reason to wait for trial to decide
the case.
The ground for Constitutional
Challenge is what is known as the Commerce Clause and General Welfare Clause of
the US Constitution. As an aside and a
reflection on how things change, when I was in law school in the mid-70’s at UC
Davis and my Constitutional Law Professor, the distinguished elder statesman
and Constitutional Law treatise author, Edward Barrett, Jr., lectured on the
Commerce Clause, he said it was a ‘dead letter’ in then modern constitutional
jurisprudence. As things have developed
over the succeeding four decades, the Commerce Clause has had new life breathed
into it by a very different US Supreme Court, and this Opinion by Judge Hudson
is yet another example.
In a nutshell, as framed by Judge
Hudson, the constitutional question in simpler terms comes down to this: does
Congress have ‘the power to regulate – and tax – a citizen’s decision not to
participate in interstate commerce.’
Judge Hudson decided that Congress exceeded its constitutional power
under the Commerce Clause and the ‘associated Necessary and Proper’ clause
(giving the power to enact laws deemed necessary to carry out their purposes),
as interpreted by the courts, including the US Supreme Court, who will now
undoubtedly ultimately hear this controversy.
Perhaps sooner, rather than later, as the effort will now be made to
bypass the 4th Circuit Federal Court of Appeals and go directly to
the US Supreme Court.
Notably, this healthcare
legislation can be struck down in part (it is what is called ‘severable’) and
the remaining portions, which do not offend the constitution, can be left in
effect, and this may be a reason why, so far, Judge Hudson has not issued the
injunction requested by Virginia to enjoin (legally bar) enforcement of
Obamacare.
Judge Hudson is careful in his
Opinion to delineate the grounds on which he ruled. Succinctly, the issue as framed by Judge
Hudson is whether Congress can "compel anyone
to purchase health insurance," and whether the requirement is a tax (Defendant Secretary’s position) or, simply a
punitive fine (Judge Hudson’s decision).
Finding no case law precedent to support this proposition, and rejecting
those cases and precedents argued by the Defendant Secretary of the Department
of Health and Human Services, Judge Hudson held that the enforcement mechanism
(without which, Obamacare could be economically viable) went beyond applicable
Commerce Clause and constitutional precedent, and therefore was
unconstitutional. In other words,
Virginia carried its heavy burden of proof and showed, at least to Judge
Hudson, that Congress over-reached its constitutional powers in enacting
Obamacare.
Interestingly, Judge Hudson
fundamentally took issue with the Defendant Secretary’s argument that, at some
point in each of our lives, we will all – every individual citizen – need
medical care. Judge Hudson further
rejected the Defendant Secretary’s argument that the enforcement mechanism was
"a vital step in transforming a currently dysfunctional interstate health
insurance market."
"Despite the laudable intentions of
Congress in enacting a comprehensive and transformative health care regime, the
legislative process must still operate within constitutional bounds," wrote
Judge Hudson, in finding that Congress exceeded the ‘outer limits’ of its
constitutional power under the Commerce Clause and other provisions of the
constitution. A large remaining portion
of the Opinion is taken up in examining various Supreme Court opinions and
precedents concerning the contours and limits of the Commerce Clause, and
Congress’ power to make laws consistent with it, and, since that portion gets
fairly technical, I will not further summarize it here.
The bottom line, of course, is that
we may be back to the drawing boards on any kind of healthcare plan once again,
as the year 2010 gets ready to say goodbye and a new Congress prepares to be
seated in January. And, of course, will
Appellate Courts, or the US Supreme Court, ultimately agree with Judge Hudson?