Monday, December 13

Virginia Judge Finds Individual Mandage Unconstitutional

From the Hill

A federal judge in Virginia ruled the healthcare reform law’s provision requiring Americans to buy insurance is unconstitutional, marking the Obama administration’s first major defeat in defense of the new law.

U.S. District Court Judge Henry E. Hudson only struck down the individual mandate and “directly dependent provisions” while upholding the rest of the reform law. The decision marks the first major step in a lawsuit destined for the Supreme Court.

\What's interesting about this ruling is that it's not the first one despite what many may say, it's actually the third ruling on the Individual Mandate - only this is the first of the three to go against the bill. 14 other challenges to the law have been dismissed outright.

The First Federal Ruling found the Individual Mandate Constitutional in opposition to this ruling.

In Detroit today, U.S. District Court Judge George Steeh refused to issue a preliminary injunction to delay implementing the law in the state. He also dismissed the key contention of the bill's conservative opponents: that a mandate requiring individuals to buy health insurance is unconstitutional.

Another Judge in Virginia ruled that same way last month.

But this new judge, who happens to be a Bush appointee, has ruled that the personal responsibility section of the Health Care Law is Unconstitutional not because of what's written in the law, but because of how it was discussed prior to completion.

Hudson said the law’s final language deceptively labels the penalty a tax, after it had been called a penalty in draft language just hours before the final bill was passed on Christmas Eve last year. The distinction between penalty and tax became a sticking point because the Constitution grants the federal government wide latitude to impose taxes, but a penalty would amount to regulation of commerce across state lines in violation of the Constitution.

Throughout the debates, Democrats in Congress and Obama said it wasn’t a tax in part because that would have violated his pledge not to raise taxes against middle-class Americans. The administration changed its tune to back its legal arguments for the individual mandate, but the judge didn’t buy it.

“This Court’s analysis begins with the unequivocal denials [during the debate] by the Executive and legislative branches that the [law] was a tax,” Hudson wrote.

A lot of things were discussed prior to passing the bill, such as the Public Option, or a Triggered Medicare Buy-in, but they aren't in the legislation either. Neither is what he's ruling on.

The actual bill has the "penalty" handled as a tax by the I.R.S. only if a person is unable to find an affordable even with subsidies. People in this position are exempt from this tax. If you already have Employer based Care, Medicare, Medicaid, Tricare or the VA - you are exempt from this mandate and this tax. Only those people who have the funds and ability to pay, and have available affordable plans in their area would be required to pay the tax penalty, and even if they don't pay it they are exempt from any further penalty.

If this ruling stands then, you'll have the Freedom to be a freeloader and let everyone else pay for your healthcare when you get sick or get into an accident. (Like, for example, the Car Accident my wife and I were in yesterday, with a resulting 5 Hour Emergency Room stay - which frankly was Record Time, down from 16 Hours last time)

Technically this portion of the bill was a Republican Idea that used to be championed by the Heritage Foundation, and was established as a gift to the insurance industry in order to get them to go along with the bill and isn't central to what the bill provides in banning pre-existing conditions, setting up the Exchanges for purchasing affordable care or accessing the Non Profit Option to avoid being gouged by Private Insurers. Even with this gift, the Industry still fought against the bill, so if this version of the lawsuit were to go forward, despite the contrary rulings in other cases, then only this provision would be struck taking away the number one gift to the Insurers and leaving the rest of the law in tact.

The Judge didn't issue an injunction blocking enforcement of this provision, but then it doesn't go into effect until 2014 anyway.

(There is also the fact that this Judge has partial ownership of a Right-Wing Lobbying Shop that campaigned against Health Care and was paid by the Plaintiff Ag Cuchinelli to argue against the law. That's more than a BIT of a comflict of interest and a hint of political motivation for his ruling.)

Frankly, I'm fine with it either way, but I have my doubts that this clearly ideologically based ruling is going to outstrip other legal opinions.


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