Health Care Law Unconstitutional? Judge Henry Hudson’s Astonishing Mistake

Is Judge Henry Hudson’s decision on Monday striking down the individual insurance mandate a bump in the road for reformers or a sign of the looming demise of the Affordable Care Act at the hands of the United States Supreme Court? I’ve long been of the mind that the individual mandate is Constitutional and that, given precedent, the Supreme’s would have no choice but to ultimately rule in favor of the mandate’s constitutionality. But while discussing the issue with a former professor of mine he wisely reminded me that the analysis of even the most esteemed scholars doesn’t matter. In fact even precedent itself doesn’t matter. All that matters is what 5 men and women on the Court believe – or want. Judge Hudson’s ruling today, on the heels of the 10 year anniversary of Bush v. Gore no less, should be a wake up call to us all – a partisan judge will not be bound by the limits of logic, legal reasoning or precedent.

Hudson is a George W. Bush appointee who just so happens to be a part owner of a political consulting firm which has actively worked against health care reform and in support of some of the most polarizing political candidates of our time. From Gawker,

As the Huffington Post and others first noted last July, Hudson’s annual financial disclosures show that he owns a sizable chunk of Campaign Solutions, Inc., a Republican consulting firm that worked this election cycle for John Boehner, Michele Bachmann, John McCain, and a whole host of other GOP candidates who’ve placed the purported unconstitutionality of health care reform at the center of their political platforms.

Better still, one of Campaign Solutions clients was Ken Cuccinelli – the Virginia Attorney General who brought the case which Hudson ruled on today. If you think this whole thing smells rotten you’re right, it does. And we haven’t even arrived at Hudson’s sloppy legal analysis.

Conservative legal scholar Orin Kerr, writing at The Volokoh Conspiracy, noted the gaping hole in the decision,

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. Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause — “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” — does not expand Congress’s power beyond the Commerce Clause itself…

Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect. The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I…

Given that existing Supreme Court caselaw 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. That is unfortunate, I think.

It is truly an astonishing omission and the fact that the error is so brazen just reinforces that Hudson’s decision is wholly without merit. Judge Hudson knew full well how well publicized his decision would be. He knew that his opinion would be read by legal scholars across the country within hours of it being published. He knew that this would be the case to land at the Supreme Court. And still he couldn’t muster any rational basis for his holding regarding the Necessary and Proper clause. Not even a fig leaf of an argument.

Writing for AOL Ian Millhiser notes that Hudson’s decision places him squarely at odds with the Supreme Court and with arch-conservative Justice Antonin Scalia,

As Justice Scalia explains, [the Necessary and Proper clause] means that “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” [this is from Scalia's concurrence in the 2005 case of Gonzalez v. Raich]

Given that the Affordable Care Act bans insurance companies from rejecting people based upon pre-existing conditions then it becomes necessary to mandate that individuals carry insurance. A ban on pre-existing conditions without an insurance mandate would lead individuals to wait until they are sick, sometimes very sick, before purchasing coverage. Such behavior makes a mockery of the very concept of insurance. The mandate is necessary to make the regulation of insurance effective – it very clearly and very obviously fits within the scope of Congress’ powers under the necessary and proper clause.

And while I agree with Millhiser that this flaw exposes the opponents of the mandate as lacking in any serious legal grounds to oppose the law I cannot share in his conclusion that,

If Henry Hudson’s folly represents the best case against health reform, then the Affordable Care Act will be just fine.

I return to the words of my sage professor – at the end of the day the mandate is only Constitutional if 5 Justices say it is. Unfortunately one does not have to look back very far to see the lengths that the right-wing members of the Supreme Court will go to in order to carry out their political agenda. It was less than 1 year ago when the so-called conservative block on the Court disregarded a century of precedent, the actual petition before them and any semblance of judicial restraint to reach their decision in Citizens United. As Jeffrey Toobin wrote in a profile of Chief Justice Roberts last year,

In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

The question before us is likely one of when, and not if, the Supreme Court will strike down the individual mandate – and just how far is the right-wing of the Court willing to go in its efforts.

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