Weekly Pulse: Judge Rules Against Health Reform, Takes Cash from Opponents

by Lindsay Beyerstein, Media Consortium blogger

The Virginia federal judge who ruled against a key component of health care reform on Monday has ties to a Republican consulting firm. Judge Henry Hudson is a co-owner of Campaign Solutions, as Amy Goodman of Democracy Now! reports.

Hudson, a President George W. Bush appointee, has earned as much as $108,000 in royalties from Campaign Solutions since 2003. A cached version of the firm’s client roster lists such vocal opponents of health reform as Sens. Mitch McConnell (R-KY), Jim DeMint (R-SC), and Olympia Snowe (R-ME), Rep. Todd Tiahrt (R-KS), the Republican National Committee and the American Medical Association.

In November, Collins and Snowe joined McConnell in signing an amicus brief to challenge the constitutionality of health care reform in a separate suit in Florida. Campaign finance records show that Campaign Solutions has also worked for Virginia Attorney General Ken Cuccinelli, who is spearheading the lawsuit. Tiahrt added an amicus brief to Cuccinelli’s lawsuit.

Today, the mandate. Tomorrow, the regulatory state?

Hudson ruled that the individual mandate of health care reform is unconstitutional. The mandate stipulates that, after 2014, everyone who doesn’t already have health insurance will have to buy some or pay a small fine. The judge argues that this requirement exceeds the federal government’s power to regulate interstate commerce.

The Commerce Clause gives the federal government the power to regulate commerce between the states and international trade. Suzy Khimm of Mother Jones explains that this clause underpins the power of the federal government to regulate the economy in any way:

But the issues at stake in Cuccinelli v. Sebelius (Ken Cuccinelli is the conservative attorney general of Virginia; Katherine Sebelius is President Barack Obama’s Secretary of Health and Human Services, or HHS) are actually far broader. Hudson’s ruling doesn’t just show how the Supreme Court could gut the health law—it shows how the court could neuter the entire federal government.

Is it constitutional?

Chris Hayes of The Nation interviews Prof. Gillian Metzger, a constitutional law scholar at Columbia University, about the merits of challenges to the constitutionality of health care reform. According to Metzger, “the argument that [the mandate] is outside the commerce power is also pretty specious given the existing precedent.”

Steve Benen of the Washington Monthly accuses Judge Hudson of committing an “inexplicable error” in legal reasoning. There is a longstanding precedent that the federal government can regulate economic activity under the Commerce Clause. Hudson acknowledges this, but he maintains that this power doesn’t cover regulations of “economic inactivity” (i.e. not buying health insurance). As Benen notes, people who don’t buy insurance aren’t opting out of the market, they’re opting to let society absorb their future medical costs. Everyone who does buy insurance pays more because freeloaders coast without insurance and hope for the best.

Luckily for the Obama administration, the judge did not bar the implementation of health reform while the case works its way through the courts. The Supreme Court will ultimately hear this case. In the meantime, the federal government can continue building the infrastructure that will eventually support health care reform.

This is the third time a federal judge has ruled on the constitutionality of health care reforms and the first victory for the anti-reform contingent.

Mandatory mandate

Paul Waldman reminds TAPPED readers why the mandate is critical to any health care reform based on private insurance. With a single-payer system, you don’t need a mandate because everyone is automatically covered. A mandate only comes into play when you have to force people to buy insurance.

Without a mandate, healthy risk-takers who don’t buy insurance will starve the system of premiums while they are well and bleed the system for benefits when they get sick. Meanwhile, people who already know they’re sick will sign up in droves, and the Affordable Care Act will force insurers to accept them.  Without a mandate, the private health insurance industry would collapse and take health care reform down with it.

Is expanding Medicare the answer?

Matthew Rothschild of the Progressive argues that the legal headaches over the individual mandate illustrate why it would have been legally and procedurally easier to achieve universal health care by simply expanding Medicare to cover everyone.

At Truthout, Thom Hartmann argues universal health insurance in the form of “Medicare Part E” would spur economic growth and innovation because entrepreneurs could start businesses without worrying about how to provide health insurance for their employees.

Meanwhile, Brie Cadman reports at Change.Org, Sen. Tom Coburn (R-OK) is trying to defund health care reform by cutting funds for preventive health care. Coburn is urging his fellow Republicans to vote against a House-passed measure that would allocate $750 million for the 2011 Prevention and Public Health Fund. Cadman notes the irony of a medical doctor like Coburn, who also claims to be a fiscal conservative,  trying to scuttle funds to control preventable diseases which would otherwise cost society billions of dollars a year.

This post features links to the best independent, progressive reporting about health care by members of The Media Consortium. It is free to reprint. Visit the Pulse for a complete list of articles on health care reform, or follow us on Twitter. And for the best progressive reporting on critical economy, environment, health care and immigration issues, check out The Audit, The Mulch, and The Diaspora. This is a project of The Media Consortium, a network of leading independent media outlets.



Tags: Affordable Care Act, Bush, Campaign Solutions, health care reform, Henry Hudson, insurance, judge, lawsuit, Medicare, public health, Thomm Hartman, Tom Coburn, Virginia, Health, Health care, Mother Jones (all tags)



it's an elephant, dopey!

instead of complaining endlessly about the individual features of the quasi-medieval oligarchy that  is america, why not just admit it is not a modern democracy, and change it?

until you get citizen initiative, you are not a citizen. with citizen initiative, most of america's problems can be successfully addressed, because most people are in favor of peace abroad, and fairplay at home.

by al loomis 2010-12-15 05:27PM | 0 recs
RE: Weekly Pulse: Judge Rules Against Health Reform, Takes Cash from Opponents

And with an insurance mandate where you are forced to buy from private insurers, health insurance costs become so expensive, individauls can'd afford the deductibles and copays that go along with them.  Then, there is no reason to even have insurance.  And yes, subsidies are written into the law, but only after you pay about 8.5%-9.2% of your income as premiums and only if you make (as an individual) less than $45,000/yr, which in certain parts of the country, is a reasonably low wage.  If people couldn't afford insurance before, they won't be able to afford that 8.5%.  So basically, this is a tax on people who couldn't afford insurance.  What a disgusting thing for a government to do.

And regarding subsidies, anyone who thinks the subsidies will survive the "austerity" promoting government is nothing but crazy.

Defending this fraud of an "insurance reform" is nothing short of unethical for a Democrat to do.  Hopefully, the right-wingi-ness of the Supreme Court will save us from the Democrats, and they'll find that this bill goes beyond the intent of the commerce clause.

by ClintonLastPrez 2010-12-15 07:11PM | 1 recs
"Required To Buy Insurance" Is The Issue

In an otherwise comprehensive examination, this post misses the obvious element of the objection to the mandate that underlies the Hudson decision: the use of a tax penalty to require citizens to purchase a product from a business. That may seem fine to people who support the mandate... but use the example of, say, a tax penalty that applies unless you have prrof of cable television service... and one may begin to appreciate why the question of drawing a line comes into focus.

That said, I don't necessarily a mandate is unconstitutional, though this mandate, as constructed, may be. It may be a question fo simply finding a construct which the Supreme Court defines once these cases reach them, as everyone seems to find inevitable. And, as many point out, the mandate, by itself, is not necessarily crucial to every aspect of the health insurance "reform" bill as it was passed; mostly it was a combination of incentive to the insurers to make reforms, and a way to get closer to full insurance. It's worth pointing out that, for at least some, it will be economically more sensible to pay the fine than pay a high insurance premium. They will then be unindured, and the cost of their care, should it be needed will still have to be absorbed.

I still think a lot of the roiling here - and the attempts of many Obama loyalists to turn these court fights into pitched ideological battles - is probably overblown. The real problems with health reform - the failures to reform Medicare in significant respects, the failure to fund Medicaid expansion appropriately or realistically - are much larger problems that may do more to derail the expected changes of 2014. This "feform" law still has a long way to actually coming to be our reality, and much of what still passes for "analysis" of the healthcare reforms is mostly speculative, and theoretical. It may be that the reforms will work wonders... it's more likely that they can't, or won't.

by nycweboy1 2010-12-15 11:08PM | 1 recs
RE: Weekly Pulse: Judge Rules Against Health Reform, Takes Cash from Opponents

"Without a mandate, the private health insurance industry would collapse ..."

I stopped reading at the word "collapse" and began celebrating.

by W.R. Greene 2010-12-16 10:17AM | 2 recs
The Healthcare Reform Act is Constitutional

There were four challenges in federal court, as I understand it - and three of them returned with the federal court upholding the constituionality of the healthcare reform act. This one is an outlier event - and it is not exactly in line with the others. My guess is that this finding will end up in the supreme court, and they will uphold its constitutionality.   If it gets out of the second round of federal district courts... it's a well timed political dog and pony show.


Not surprised at all that a Bush appointed Judge is on the take.


by Trey Rentz 2010-12-16 12:39PM | 0 recs


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