Dec 14, 2010
Activist conservative judge incorrect on health care insurance reform
Republicans like U.S. Rep Mike Rogers, R-Brighton?, are practically giddy today that 50 million Americans may not have access to health care insurance after U.S. District activist Judge Henry Hudson struck down the "individual mandate" of the historic health care insurance reform bill requiring most Americans to purchase health insurance by 2014.
People like Rogers are latching on to this ruling by the 2002 George W. Bush appointee while ignoring the two previous rulings in favor of the health care insurance reform. The U.S. Supreme Court will have the final say, and the ruling from an activist judge with ethical questions will carry no weight.
Hudson ruled on a law that a GOP political consulting firm that he has an ownership stake in worked against health care insurance reform. However, the larger issue is that legal experts know Hudson is wrong, and his ruling simply raises ethical questions. It may or may not have had an effect, but the fact remains that Federal judges are required by statute to disqualify themselves from hearing a case whenever their impartiality might reasonably be questioned.
Multiple provisions of the Constitution permit Congress to enact this reform legislation. As long ago as 1944, the Supreme Court held that the business of insurance fell within Congress’ regulatory authority under the Commerce Clause, as well as Congress’ authority to tax and spend for the general welfare. Nothing since undercuts the authority of Congress to legislate in this area. No provision of the Bill of Rights, or text found elsewhere in the Constitution, acts to prohibit Congress from enacting the healthcare reform legislation.
Legal experts are attacking Hudson's decision on the merits, citing an elementary logical flaw at the heart of his opinion, according to an article in Talking Points Memo. And that has conservative scholars -- even ones sympathetic to the idea that the mandate is unconstitutional -- prepared to see Hudson's decision thrown out.
Orin Kerr, a professor of law at George Washington University, said the Necessary and Proper Clause of the U.S. Constitution allows Congress to take steps beyond those listed in the Constitution to achieve its Constitutional ends, including the regulation of interstate commerce. Kerr says Hudson's argument wipes a key part of the Constitution out of existence.