Health Care Law Unconstitutional?

So says a federal judge (GWB appointee) in VA:

RICHMOND – A federal judge in Virginia ruled Monday that a key provision of the nation’s sweeping health-care overhaul is unconstitutional, the most significant legal setback so far for President Obama’s signature domestic initiative.

U.S. District Court Judge Henry E. Hudson found that Congress could not order individuals to buy health insurance.

In a 42-page opinion, Hudson said the provision of the law that requires most individuals to get insurance or pay a fine by 2014 is an unprecedented expansion of federal power that cannot be supported by Congress’s power to regulate interstate trade.

Honestly, I think reasonable people can disagree on this point.  Though, I’m (not surprisingly) more persuaded by those who argue that the mandate is, in fact, consistent with existing jurisprudence on how the Commerce Clause is interpreted.  The big point, though, is that the ultimately is not that big a deal (regardless of whatever Fox news says).  Why?

Hudson is the first judge to rule that the individual mandate is unconstitutional. He said, however, that portions of the law that do not rest on the requirement that individuals obtain insurance are legal and can proceed. [emphasis mine]

At worst, only the mandate clause can conceivably be ruled Unconstitutional by the Supreme Court (the only place it really matters).  And, this can and will be fixed if this happens.  If that mandate were to be thrown out, you better believe that all the health insurance companies would find a way (with Congress’ help, of course) to create a mandate in practice, if not law, since the parts of the law saying they have to cover everybody irrespective of pre-existing conditions will not be thrown out.  For example, you could create an opt-out clause such that if you don’t buy health insurance at a certain time, you lose the option to have any federal subsidies for five years.  Paul Starr’s got the un-mandate nicely explained here.  If not this, exactly, certainly something similar would come to pass of political necessity.


About Steve Greene
Professor of Political Science at NC State

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