More apparent than real perhaps....
Is the Hudson ruling good news for health reform?
By Ezra Klein
District Court Judge Henry E. Hudson, a George W. Bush appointee, has, as expected, ruled the individual mandate unconstitutional. So why are health reformers so unexpectedly pleased?
There are two reasons, but first, let's put this into context. Hudson's ruling is the third from a district court so far. Previously, Judge Norman Moon found the mandate constitutional, and so too did Judge George Steeh. Both Steeh and Norman were Clinton appointees, which is to say that so far, the rulings are proceeding along predictably partisan lines.
Hudson ruled against the government, but he didn't stop it (you can read the full opinion here). He refused the plaintiff's request for an injunction against the legislation's continued implementation. The construction of the bill's infrastructure will continue. And second, he refused to overrule anything but the individual mandate itself.
The real danger to health-care reform is not that the individual mandate will be struck down by the courts. That'd be a problem, but there are a variety of ways to restructure the individual mandate such that it doesn't penalize anyone for deciding not to do something (which is the core of the conservative's legal argument against the provision). Here's one suggestion from Paul Starr, for instance. The danger is that, in striking down the individual mandate, the court would also strike down the rest of the bill. In fact, that's exactly what the plaintiff has asked Hudson to do.
Hudson pointedly refused. "The Court will sever only Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501." That last clause has made a lot of pro-reform legal analysts very happy. Go to the text of the health-care law and run a search for "1501." It appears exactly twice in the bill: In the table of contents, and in the title of the section. There do not appear to be other sections that make "specific reference" to the provision, even if you could argue that they are "directly dependent" on the provision. The attachment of the "specific reference" language appears to sharply limit the scope of the court's action.
Hudson will not have the last word on this. Anthony Kennedy will. The disagreements between the various courts virtually ensure that the Supreme Court will eventually take up the case. But right now, the range of opinions stretch from "the law is fine" to "the individual mandate is not fine, but the rest of the law is." That could create problems for the legislation if the mandate is repealed and Republicans block any attempts at a fix, but it's a far cry from a world in which the Supreme Court strikes down the whole of the health-care law.
By Ezra Klein | December 13, 2010; 1:36 PM ET |
