Amateur Hour: VA Judge Makes Elementary Error In Health Care Ruling

[one...two...tree 2,762]

The Virginia federal district court judge who ruled yesterday that the individual mandate in the health care bill is unconstitutional is catching a lot of flack -- and not just for having a financial interest in an anti-health care reform consulting firm.

Legal experts are attacking Judge Henry Hudson's decision on the merits, citing an elementary logical flaw at the heart of his opinion. And that has conservative scholars -- even ones sympathetic to the idea that the mandate is unconstitutional -- prepared to see Hudson's decision thrown out.

"I've had a chance to read Judge Hudson's opinion, and it seems to me it has a fairly obvious and quite significant error," writes Orin Kerr, a professor of law at George Washington University, on the generally conservative law blog The Volokh Conspiracy.

Kerr and others note that Hudson's argument against Congress' power to require people to purchase health insurance rests on a tautology.

The key portion of the ruling reads:

If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Kerr notes that this is all wrong. The Necessary and Proper Clause allows Congress to take steps beyond those listed in the Constitution to achieve its Constitutional ends, including the regulation of interstate commerce. Hudson's argument wipes a key part of the Constitution out of existence. Kerr says Hudson "rendered [it] a nullity."

Kerr's co-blogger, Case Western Reserve University Law Professor Jonathan Adler agreed, though he cautioned that Hudson's error doesn't necessarily imply that the mandate is constitutional.

In an interview with TPM this morning, Timothy Jost of Washington and Lee University, a supporter of the mandate, called the logic on this point "completely redundant."

"In Hudson's opinion he basically conflates the Commerce power and the Necessary and Proper power and says that each provision in a statute has to be looked at independently from every other provision, and each provision has to be independently authorized under the Commerce Clause," Jost said. "And if it isn't, the Necessary and Proper Clause doesn't grant any more authority."

As a result of this error, Hudson never engages the key question in the case: whether the individual mandate is a reasonable way for Congress to implement regulations within its purview.

"Given that existing Supreme Court case law gives the federal government a fairly straightforward argument in support of the mandate under the Necessary and Proper clause, Judge Hudson's error leads him to assume away as a matter of 'logic' what is the major question in the case," Kerr writes. "That is unfortunate, I think."

http://tpmdc.talking...ing.php?ref=fpa

[Obama 2012 1,714]

tsk tsk Steven, digging and hoping TPM () would come to the rescue and support your flawed commie pinko ideas.

N&P doesn't grant the government any more powers than they already have. It's intent was to re-iterate the fact that they could create laws to excercise their enumerated powers.

Nice try though. We aren't a commie pinko country though as much as you and TPM may wish.

[Ban Hammer 13,355]

today's lesson from steven: trust the judges, they are educated and know what they are doing - until they rule against something you're in favor of.

[james&olya 1,121]

tsk tsk Steven, digging and hoping TPM () would come to the rescue and support your flawed commie pinko ideas.

N&P doesn't grant the government any more powers than they already have. It's intent was to re-iterate the fact that they could create laws to excercise their enumerated powers.

Nice try though. We aren't a commie pinko country though as much as you and TPM may wish.

I think all you tea-party wing-nuts ought to get a bit more consistent. The fact is that we have all been mandated to buy insurance for decades, it is called medicare and it is deducted from every paycheck! Be careful what you are wishing for, if the tea-partiers handlers have their way all 'entitlement' programs (Medicaid, Medicare, and Social Security) will cease to exist. If you are very wealthy this may not matter but the rest of us need those programs. As ever more radical tax-cuts give more money back to the wealthiest, the money to pay for medicaid will probably disappear first. And if you were not already aware, this is what funds most nursing homes in this country. Consider the consequences when they close their doors! Medicare will follow and eventually social security will also go. You are right, these ARE socialist programs but this is socialism in the best sense of the word!

[mawilson 2,133]

today's lesson from steven: trust the judges, they are educated and know what they are doing - until they rule against something you're in favor of.

[Obama 2012 1,714]

I think all you tea-party wing-nuts ought to get a bit more consistent. The fact is that we have all been mandated to buy insurance for decades, it is called medicare and it is deducted from every paycheck! Be careful what you are wishing for, if the tea-partiers handlers have their way all 'entitlement' programs (Medicaid, Medicare, and Social Security) will cease to exist. If you are very wealthy this may not matter but the rest of us need those programs. As ever more radical tax-cuts give more money back to the wealthiest, the money to pay for medicaid will probably disappear first. And if you were not already aware, this is what funds most nursing homes in this country. Consider the consequences when they close their doors! Medicare will follow and eventually social security will also go. You are right, these ARE socialist programs but this is socialism in the best sense of the word!

Cute.

Yes, GOOD end it all. Medicare, Social Security, etc. Save for your own damn retirement. Medicaid is suppose to be a social assistance program, not a program to live on.

give more money back to the wealthiest? Are you out of your mind? Tax-cuts do no such thing. They let people KEEP more of THEIR OWN money. It's such idiocy to anyone who says the government is "giving" them money. Shut up with that horse #######. Seriously. Class warfare is the biggest joke there is out there and part of our problem today is the "entitlement" mentality by everyone. The problem in government and social programs is people like you feel like you're entitled to the salary of someone else who might make more money than you. You aren't.

This topic isn't about those things though and is about requiring an individual to buy a service from a PRIVATE company. The government could have won their argument easily had they just made a single payer system and made it an actual tax, but they screwed up royally when they didn't and instead made it so an individual had to buy a product from a private organization. Sorry, it doesn't work that way and there is no standing for the government to force ecomonic activity.

[james&olya 1,121]

Cute.

Yes, GOOD end it all. Medicare, Social Security, etc. Save for your own damn retirement. Medicaid is suppose to be a social assistance program, not a program to live on.

give more money back to the wealthiest? Are you out of your mind? Tax-cuts do no such thing. They let people KEEP more of THEIR OWN money. It's such idiocy to anyone who says the government is "giving" them money. Shut up with that horse #######. Seriously. Class warfare is the biggest joke there is out there and part of our problem today is the "entitlement" mentality by everyone. The problem in government and social programs is people like you feel like you're entitled to the salary of someone else who might make more money than you. You aren't.

This topic isn't about those things though and is about requiring an individual to buy a service from a PRIVATE company. The government could have won their argument easily had they just made a single payer system and made it an actual tax, but they screwed up royally when they didn't and instead made it so an individual had to buy a product from a private organization. Sorry, it doesn't work that way and there is no standing for the government to force ecomonic activity.

FYI, I am in a pretty high tax bracket and Obama basically told me he would raise my taxes. I voted for him anyway. I hate to see the american way of life end for most people but it surely will as the middle class ceases to exist here. I agree completely with you that we should have a 'medicare-for-all' single payer health system! I also believe in public education, public roads and highways, an effective military, good police and fire protection, fair and impartial courts, effective, common-sense regulation of food safety, drug safety, etc, etc. All this costs money. We all must contribute to the payment for these services and the more fortunate among us need to pay a higher amount since we have benefitted more from our system. Even the Bible says that more is expected from the man unto whom much has been given! Call it socialism if you want, but the Bible also tells us that we are our brother's keeper! The truest patriot is the one who looks out for the welfare of all his fellow citizens, especially the weakest among them. The person who looks out only for himself does not deserve to be considered a patriot!!

[Obama 2012 1,714]

FYI, I am in a pretty high tax bracket and Obama basically told me he would raise my taxes. I voted for him anyway. I hate to see the american way of life end for most people but it surely will as the middle class ceases to exist here. I agree completely with you that we should have a 'medicare-for-all' single payer health system! I also believe in public education, public roads and highways, an effective military, good police and fire protection, fair and impartial courts, effective, common-sense regulation of food safety, drug safety, etc, etc. All this costs money. We all must contribute to the payment for these services and the more fortunate among us need to pay a higher amount since we have benefitted more from our system. Even the Bible says that more is expected from the man unto whom much has been given! Call it socialism if you want, but the Bible also tells us that we are our brother's keeper! The truest patriot is the one who looks out for the welfare of all his fellow citizens, especially the weakest among them. The person who looks out only for himself does not deserve to be considered a patriot!!

Taxes aren't helping your fellow man. Don't be fooled. If you want a biblical history lesson, the man with only a nickle to his name who gives that nickle to charity gives more than the millionaire who gives $999,000 of his fortune away.

[luckytxn 2,264]

Well then this crew can be overjoyed when the SCOTUS rules in their favor.

[scandal 951]

Shut up with that horse #######.

People have been suspended on here for far less than this.

How long do we have to take the insult of having to suffer the double indignity of a moderated forum where we need to watch what we say, and loudmouths who say whatever they want? I'm all for letting the loudmouth talk, but in that case can we stop the pretense of "TOS violations" at every turn?

[mawilson 2,133]

People have been suspended on here for far less than this.

How long do we have to take the insult of having to suffer the double indignity of a moderated forum where we need to watch what we say, and loudmouths who say whatever they want? I'm all for letting the loudmouth talk, but in that case can we stop the pretense of "TOS violations" at every turn?

Just say what you need to say - imagine the forum is unmoderated. I do.

[The_Dude 1,142]

Just say what you need to say - imagine the forum is unmoderated. I do.

Speaking of which, any new developments on your plan to win the war in afghanistan?

[Ban Hammer 13,355]

Just say what you need to say - imagine the forum is unmoderated. I do.

so that explains a few things.

[luckytxn 2,264]

Just say what you need to say - imagine the forum is unmoderated. I do.

Always works for me.

[scandal 951]

Always works for me.

You Socialist, you.