State Courts Pose Threat to Health Reform Law

December 6th, 2010 | Sources: NY Times


Flush from their big win in the midterms, the Boehners are vowing to repeal and replace the Big O’s health reform law. They pose a legitimate threat, but an even larger one lies in the courts, where suits challenging the constitutionality of the law have been popping up like fireflies on a late August night.

In Virginia for example, Republican-appointed Federal District Court Judge Henry Hudson has indicated that the Individual Mandate—a key provision of the law that has been challenged in a suit filed in his court by the state’s Republican Attorney General—might not pass his sniff test.

Hudson said he’d rule on the matter this month. If he deems the provision to be unconstitutional, he might (it’s unlikely, but he might) enjoin the law altogether until higher courts rule on the matter. Holy Kazakhstan, Batman!

An official at Camp Obama, who spoke with the New York Times under the condition that his name not be WikiLeaked, acknowledged that Hudson’s thumbs appear to be pointing downward, indeed.

“He’s asked a number of questions that express skepticism…we have been trying to think through that set of questions,” the official told the Times.

There’s no doubt, by the way, that the Individual Mandate is a foundational element of the Big O’s law. Without the mandate, millions won’t purchase health insurance until they get sick (you’d do that too, right?). That behavior blows-up the risk-pool; it prevents insurers from spreading the costs of caring for the few who are sick onto the many who are healthy, which is how insurance works in the first place.

A thumbs-down by Hudson would do a lot more than that, of course. It would confuse the bejesus out of the public, throw a wrench into the plans of providers and insurers who are already behind in organizing themselves to implement the law, create bureaucratic chaos in several government agencies involved with its implementation, and light-up the court system like a pinball machine.

So the $64,000 question is, “Can the Feds require citizens to buy health insurance?”  Judge Hudson gets to throw out the ceremonial first pitch when it comes to answering the question, but ultimately this baby is going to the Supremes. Bet on that! And it’ll take a 2-year sojourn through the Appellate process before it ever reaches 1st and East Capitol.

If there is a kernel of good news in this mess, it’s that Judge Hudson probably won’t enjoin the whole deal, even if he rules against the Mandate. No Federal District Judge this side of Deion “Prime Time” Sanders would have the hubris! And assuming Hudson doesn’t throw out the baby with the bathwater, the immediate impact of his snub would be minimal, since the Mandate provision doesn’t kick-in until 2014 anyway.

In that case, all we have to worry about is those other 2 dozen fireflies lighting up the summer sky.


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