First Step in Dismantling ObamaCare?

A federal judge in Richmond has struck a serious blow to ObamaCare, validating the fears of the majority of Americans who want to see the law overturned before it destroys the world’s premier health delivery system.

In its first major court test, District Judge Henry Hudson ruled Monday that the law’s mandate to make individuals buy health insurance is unconstitutional on two crucial grounds.

First, Hudson, an appointee of President George W. Bush, found that Congress exceeded its constitutional authority to regulate interstate commerce by compelling people “to involuntarily engage in a private commercial transaction.”

Second, he said the Obama administration can’t argue after the fact that the individual mandate is a tax and therefore within Congress’ constitutional taxing authority.

“The court is unpersuaded” that the penalty for not purchasing insurance is a “bona fide revenue-raising measure enacted under the taxing power of Congress,” Hudson wrote from his bench in the Eastern District of Virginia.

Court Check

Virginia’s Republican attorney general, Ken Cuccinelli, led the commonwealth’s case against the law. It was a victory for him when Hudson declared that the mandate to buy health insurance represents an “unchecked expansion of congressional power” that “would invite unbridled exercise of federal police powers.”

Cuccinelli had argued that the Commerce Clause of the U.S. Constitution does not grant Congress the authority to force people into economic activity.

Hudson agreed, declaring that the mandate is “neither within the letter nor the spirit of the Constitution.”

At one point, even candidate Obama agreed. During the 2008 presidential campaign, he argued against the government requiring people to purchase health insurance: “If a mandate was a solution, we could try that to solve homelessness by mandating everyone buy a house.”

As president, the individual mandate became the tall pole in the hastily constructed tent of ObamaCare. While Hudson did not halt implementation of the law or declare the rambling, 2,400-page bill invalid, supporters and opponents alike argue that losing the individual mandate could cause the whole flawed structure to collapse.

In his 42-page opinion, Hudson hoisted those who drafted the law on the petard of their own rhetoric.

He cited earlier versions of the legislation in the House and Senate that referred to the penalty for not complying with the mandate by “the politically toxic term ‘tax.'”  The lawmakers substituted “penalty” for “tax” in the individual-mandate section of the final law.

“A logical inference can be drawn that the substitution of this critical language was a conscious and deliberate act on the part of Congress,” Hudson reasoned, noting the term “tax” is used in numerous other places in the law regarding taxing medical devices, employer-sponsored health insurance, high-income taxpayers and indoor tanning services.

The White House predictably is arguing that the decision against them in the Virginia case isn’t a big deal because numerous other challenges to the law have been thrown out by other judges.

But none are as important as this one and the major one coming up in Florida.

Most of the other cases have been thrown out on “standing” claims or by judges with a very different interpretation of the Constitution. Judge George Steeh of the U.S. District Court for the Eastern District of Michigan said the individual mandate is needed so the other provisions of the law can work.

Numerous experts argued during the ObamaCare debate that the individual mandate was unconstitutional.

The White House and Congress chose to ignore them and, in their hubris, decided they could re-engineer one-sixth of the U.S. economy and rewrite the Constitution in the process.

The astonishing thing is that virtually the entire health care establishment bought into this. The health insurance industry staked its future on the individual mandate as necessary to make all of the other provisions of this Rube Goldberg monstrosity work. Was there ever anyone at any of these meetings who raised his hand to say that maybe it wasn’t a good idea to pass a major piece of legislation that was premised on violating the Constitution?

Kill Bill?

While Hudson did not strike down the whole law, he determined that the individual mandate and associated provisions could be declared unconstitutional — severing the “problematic portions while leaving the remainder intact.”

He also concluded that the law “embraces far more than health care reform.  It is laden with provisions and riders patently extraneous to health care — over 400 in all.”

Make no mistake. This is a major victory for opponents of ObamaCare.

Hudson made the correct constitutional decision, and hopefully other courts will follow his lead as the case wends its way through the judicial process in 2011.

Posted on Investors.com, December 20, 2010.

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