Ruling favors power to people

December 17, 2010


The ruling by U.S. District Court Judge Henry E. Hudson that the Affordable Care Act (ACA), also known as “Obamacare,” unconstitutionally imposes a requirement that everyone carry health insurance or be taxed for not doing so, has placed the law on legal life support. Ultimately it will be up to the U.S. Supreme Court to either pull the plug on this unaffordable monstrosity, or uphold it and put taxpayers in the equivalent of a persistent vegetative economic state.

Virginia Attorney General Ken Cuccinelli filed the lawsuit challenging the law’s “individual mandate” provision that requires all citizens to buy health insurance or, beginning in 2014, pay a penalty. More than 20 states have similar lawsuits pending. Cuccinelli said in a news conference in Richmond, Va., that the individual mandate is the “common thread” running through all of the legal challenges. He is asking that the Supreme Court take the case immediately under its “Rule 11,” which states that a case must be “of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”

Cuccinelli believes the case meets that test. So does Rep. Eric Cantor, R-Va., who quickly asked the Department of Justice for an expedited appeal to the Supreme Court. Given Attorney General Eric Holder’s glacial approach to trying terrorists and opposition to the ruling by the White House, don’t expect Holder to move with any great alacrity on ACA.

Judge Hudson is the first judge to strike down the law. Other judges in Virginia and Michigan have upheld it. Cuccinelli says the next state challenge to be ruled on is Florida, which may come soon.

Even if the Supreme Court agrees with Judge Hudson and strikes down the law, few will notice any effect, as its major provisions, including the individual mandate, won’t take effect for three years. That leaves plenty of time for newly empowered Republicans to draft legislation that reflects the type of health care reform they have proposed; one based more on the free market and individual choice, not top-down government mandates. President Obama is likely to veto such a Republican plan, but congressional and presidential candidates in 2012 could make the issue central to their campaigns. Public opinion has swung against Obamacare, as more people come to understand what’s in the law and its negative consequences.

In a statement shortly after the ruling, Rep. Steve King, R-Iowa, got to the heart of what bothers most opponents of ACA: “Obamacare’s ‘individual mandate’ always rested on the absurd premise that the Commerce Clause empowered the federal government to regulate Americans’ decisions not to engage in commercial activity. Adoption of such an argument would have vested the federal government with the power to regulate virtually every aspect of Americans’ lives ... .”

King is correct. If the federal government can get away with ordering individuals to buy health insurance based on interstate commerce laws, it could order us to submit to any other practice it deems for our good based on similar misinterpretations of the Constitution. Such a course would further erode our liberties and move us closer to dictatorship and away from principles the Constitution was written to protect.

Should Judge Hudson’s ruling be upheld on appeal, a significant corner will have been turned in the Left’s march toward a socialist state. Polls, as reflected in last month’s election, show that a majority of the public has grown tired of ceding too much power to government, no matter which party runs it. Growing numbers of us have awakened to the misappropriation of funds we taxpayers have given Washington. It is time not only to stop them, but to begin reversing the process with legislative sunset laws, periodic reauthorization of all government programs and agencies, a reform of the tax code and lower tax rates that will return power to the people where it belongs and where the Founders intended it to remain.

Cal Thomas is a columnist for Tribune Media Services.


Corey Williams 7 years, 5 months ago

Sure beats having the best healthcare in the world.

voevoda 7 years, 5 months ago

TomShewmon, Stop calling President Obama "The Anointed One" as a sarcastic put-down. It is sacrilegious and offensive. How do you think incoming governor Sam Brownback, a devout Catholic, feel when you bandy about the sacred titles of his Lord and Savior as terms of political abuse?
Criticize the president and his policies if you like, but don't blaspheme in the process.

Maddy Griffin 7 years, 5 months ago

I want the same health care insurance that Congress has, after all my taxes help pay for it!

independant1 7 years, 5 months ago

and their pension plan -

jerk the Golden Fleece retirement out from under the Senators and Congressmen, and put them in Social Security with the rest of us

congressional pension is about 4X better than SS.

All Senators are rich and Representatives are much better off than the rest of us.

voevoda 7 years, 5 months ago

You could have the same health insurance that Congress has, grammaddy. All it would take would be for Congress to institute a single-payer plan. However, the Republicans in Congress wouldn't even consider this possibility.

voevoda 7 years, 5 months ago

Maple flavor, iamtired.
Even Sarah Palin preferred to use the Canadian system.

Maddy Griffin 7 years, 5 months ago

Actually he got mad and told the Regurgicans in the Senate to "Quit whining and get to work". Most of his constituency work over the holidays and he doesn't mind calling off winter break for them.

Kirk Larson 7 years, 5 months ago

He called a bunch of republickers out because they refused to vote for the bill because of all the earmarks that they, themselves, had put in the bill.

Paul R Getto 7 years, 5 months ago

One judge; one opinion. It's gonna be a long pull through the courts on this issue. Relax, it's called our system. Those who don't like decisions by 'activist judges' are on both sides of controversial cases. Activists make decisions 'we' don't like. This judge has an interesting background, however, investing in right wing media and propaganda companies. Nothing wrong with that, I suppose, but interesting. Will the Supremes eventually log in on this one? Who knows. Everyone, including Mr. Thomas, should take some deep breaths.

Scott Drummond 7 years, 5 months ago

Exactly. Would someone please explain how two district courts upholding the law and one rejecting it constitutes "life support" for the law?

Just one more example, I suppose, of our "liberal" mainstream press bias that generally always seems to take the conservative view to me.

Maddy Griffin 7 years, 5 months ago

Nice try Tom, but 2 out of those 3 are still around for at least another two years and maybe more.

Scott Drummond 7 years, 5 months ago

DADT gets repealed today, that's a pretty big leftist agenda item. And what have been the teabagger accomplishments?

jafs 7 years, 5 months ago

I'm sorry to see you becoming more like TS in your posts.

just_another_bozo_on_this_bus 7 years, 5 months ago

Hudson is a purely partisan political hack, and that is the whole basis for his ruling.

Not that I agree with the mandate to purchase insurance from private insurers whose only purpose is deliver profits to its top executives and stockholders, not to deliver health insurance, or the healthcare its supposed to fund.

And don't believe for a second that the Republicans (including Cal) give a damn about the high cost of medical care. If you're wealthy, the US has quite good healthcare available to you. If you're not, you're screwed-- precisely how Republicans like it.

just_another_bozo_on_this_bus 7 years, 5 months ago

Some administrative assistants may retain their benefits, (if they are cute and make good coffee) but Republican animosity towards all things union has clearly put union medical benefits on a death watch. And once your job moves to China, your medical benefits are non-existent.

Paul R Getto 7 years, 5 months ago

TomShewmon (Tom Shewmon) says… At any rate, the American voter "summarily snuffed out" the Obama/Pelosi/Reid socialist agenda. Their arrogance and The Anointed One's 'fundamental transformation' line of BS lasted a whole 21 months. ====== Mr. Shewmon, you may be right, but polling data taken since the election suggests otherwise. The new congress must deal with those who voted and the entire country, those not voting being in the majority. Let us hope we give the TeaParty types more than 18 months to cure decades of neglect and selfish legislation we don't want to pay for.

Paul R Getto 7 years, 5 months ago

TomShewmon (Tom Shewmon) says… At any rate, the American voter "summarily snuffed out" the Obama/Pelosi/Reid socialist agenda. Their arrogance and The Anointed One's 'fundamental transformation' line of BS lasted a whole 21 months. ====== Mr. Shewmon, you may be right, but polling data taken since the election suggests otherwise. The new congress must deal with those who voted and the entire country, those not voting being in the majority. Let us hope we give the TeaParty types more than 18 months to cure decades of neglect and selfish legislation we don't want to pay for.

just_another_bozo_on_this_bus 7 years, 5 months ago

This judge has ruled in unconstitutional, while two others have ruled exactly the opposite. Its constitutionality won't be resolved until the SC has its say.

But do you really believe this Republican hack of a judge gives damn about the "rights of the people?" Or that such rights will be a consideration whenever the SC does make its ruling?

libra101 7 years, 5 months ago

And 12 others dismissed the cases without comment. So to recap, 1 judge w/ties to an anti-healthcare lobbying group found problems w/the law. 14 others had no problem with it.

staff04 7 years, 5 months ago

That attitude will serve you well when you are practicing law--and fuels my suspicions about where you go to school. I'd love to be in the courtroom when you tell the judge that you don't need him to tell you what the law is because you can read it yourself.

jafs 7 years, 5 months ago

I have to agree with LO on this one (I'm shocked!) - the Commerce Clause was clearly not intended for this sort of use.

It was intended, in my opinion, so that the federal government could participate in crafting some sort of even rules for intrastate commerce when necessary.

Requiring individual purchases of products (especially when those products are purchased in state, as health insurance is) doesn't meet that criteria, which also wouldn't apply to people who grow and use small amounts of marijuana (where it's also been applied)..

Rick Aldrich 7 years, 5 months ago

You almost had it Jafs. Here's the required change:

"which also wouldn't apply to people who grow and use small amounts of marijuana (where it's also been applied).."

should be changed to

"which also wouldn't apply to people doing what they want with their own bodies as long as it doesn't infringe on the rights of others"

You're getting there!

jafs 7 years, 5 months ago

Interesting - have you been elected or appointed as the "required change" supervisor?

I agree with your last sentence as well, and in other discussions I've advocated for that.

Liberty275 7 years, 5 months ago

I think he was elected. And he is right. You pulled you swing advocating for "small amounts of marijuana" instead and amount of any drug you want and hookers.

Half-measures are for the weak.

jafs 7 years, 5 months ago

This was a conversation about the Commerce clause and whether it applied to the recent health care legislation. I think it does not, since there is not a valid interstate commerce issue involved.

In that context, I mentioned that it has been incorrectly applied to personal marijuana use as well, so that it's a federal offense even if the state legalizes it.

If you want to have a broader conversation about legalizing drugs, that's fine - I support all activities which don't harm others, and would legalize all drugs and prostitution as well.


Paul R Getto 7 years, 5 months ago

As I said before, this is easily fixed. Change the contsitution and the laws that make it illegal to just let people die in the street when we check their wallet and find they have no coverage. Now, we are paying for those without coverage when we pay our premiums each month. The current law may not be the best approach (they should have done single-payer but wimped out) but we must get everyone in the health care boat or it will sink us all.

jafs 7 years, 5 months ago

Changing the constitution is, and is supposed to be difficult.

Paul R Getto 7 years, 5 months ago

jafs: I agree; then we need to change the law and figure out a way to get everyone insured.

bad_dog 7 years, 5 months ago

If you have health insurance coverage you are already paying to ensure the less fortunate receive treatment and medications when they show up at the ER. The hospitals don't just write that off, it's passed on to consumers and insurers in the form of increased costs for goods & services. So as the cost of those goods & services increase, so does your premium.

Rick Aldrich 7 years, 5 months ago

Deport the uninsured to communist china so they can benefit from a maoist cum marxist nirvana (not to be confused with the band) with free everything (except maybe speech). However we should be careful to not send them to communist north korea, because there, cat eats you.

voevoda 7 years, 5 months ago

Cal Thomas advocates "reflects the type of health care reform....based more on the free market and individual choice." Well, Mr. Thomas, that's what the legislation Congress already passed does. Individuals will need to buy insurance from private companies; there's no public option. They have their choice among the plans the private companies offer. There are very few federal mandates as to what sort of coverage companies must offer, and none concerning the prices they can charge. That's "free market" and "individual choice." Thomas and others of his ilk don't mind that the insurance might not be affordable for many workers. Or it will still take up a huge chunk of disposable income for many people in the middle class. Or that it lays a huge financial burden on employers, especially small businesses that want to do the right thing by their employees. Thomas and his ilk care only that the law contains a provision that persons who don't bother to secure health insurance will need instead to pay into a fund set up by the federal government to cover the health care costs of the uninsured. They claim to be concerned about the "constitutional principle." Maybe; that's for the Supreme Court to decide, and it will. But when they moan about the provision being "socialism," they are just plain wrong. This provision is inspired by a capitalist principle: people should pay their own way. People who buy insurance are paying their own way for the health care, in a responsible manner. People who don't buy insurance usually end up using the health care system anyway, and the ones who get really sick too often end up walking away from the bills. They can't afford to pay or they just refuse to. As things stand, we the people end up covering the cost of their bills, and that's not fair. So the new law places the cost of caring for uninsured people on--uninsured people themselves.
The newly-passed legislation is a form of state capitalism, not socialism. The government generates public business for private companies, which profit as a result. I don't have a philosophical problem with this way of dealing with the problem of the high cost of health care, if it works.
But here's the problem: the reform that has been enacted has been gutted of the provisions to rein in overall costs and provide care at reasonable cost for all citizens. That happened at on the demands of Republicans (and a few Red-Dog Democrats). So the reform is actually minimal, and it doesn't look like it will suffice. There is only one socialist-style sector (i.e. paid for and administered by the government) in the American health care system, and that the V.A. A lot of Americans would be really happy to have V.A. medical care. A lot of veterans depend upon it.

Kirk Larson 7 years, 5 months ago

The reform law is not a government take-over of health care. If anything, it is a consolidation of control by the private health insurers. The point of the opposition is to make sure that nothing President Obama and the Democrats do is seen as a success no matter how much good it will actually do for the American people.

libra101 7 years, 5 months ago

Did that poll break it down further? At that time I remember thinking, that yes I was very happy w/my midwife, my kids pediatrician, my actual health care. I was however disgusted by my health insurance company, which changed every year for a few years, b/c my employer was constantly shopping for the best deal. Most people can change their doctor whenever they want to. You rarely get to choose which health insurance provider you use. Big difference.

And so far it is 14-1 that the individual mandate is constitutional.

Scott Drummond 7 years, 5 months ago

It is, however, a better one than Cal's "a single district court has found it unconstitutional, therefore it's on life support."

Scott Drummond 7 years, 5 months ago

Any other practice...

You mean like not allowing us to smoke a natural weed, or engage in certain manners of sexuality, or, as a woman, control our own bodies, or engage in airport peep shows and gropings, or support needless military adventures to support business welfare, or any of the other 1,000 things the government already does. Yes, it will horrible to allow all of this country's citizens to enjoy health care, rather than those select ones who have rigged the game in their own favor.

jafs 7 years, 5 months ago

Yes - that's how employer based insurance started.

If employers didn't provide insurance, however, there's no guarantee at all that they'd pass that savings on to employees in the form of higher salaries.

According to another poster, one can in fact buy health insurance across state lines if both states agree - apparently that's not something they want to agree to. If that's the case, then requiring them to do so flies in the face of conservative principles like states' rights.

jafs 7 years, 5 months ago

On what grounds would it be unconstitutional for a state to set those rules? Sounds like large federal government power at work to me.

Many employers are currently paying less of their employees' health insurance - when they do that, they don't give employees a raise at the same time.

Do you have any examples of a business which chose to stop providing health insurance and then paid their employees that money as salaries?

I agree with the last paragraph in general, although there's a vicious cycle involved as health care costs go up - an annual physical with blood tests costs several hundred dollars, for example.

Kirk Larson 7 years, 5 months ago

Did you learn cut and paste from Merril?

voevoda 7 years, 5 months ago

The fallacy here? The beer still costs $100 to produce and provide. So who is paying the $20 that the drinkers aren't paying? How long will the bar be in business if the drinkers aren't willing to pay the actual costs? The barkeeper can't make back the money he needs to keep his business open. So what are his choices? Maybe the barkeeper can attract more customers if he reduces the price, but the pool of drinkers is limited in his village, and the other bar is in exactly the same situation. A price war will bankrupt both of them. Outsource the business to drinkers in India? Hire illegal aliens as servers and cut the cost of the drinks to $95? Maybe he'll take out a loan and postpone the day that he'll go out of business. Or maybe he'll appeal for an exemption from local taxes or seek a bailout. Or he can substitute Crystal Light for the beer so the same number of drinks would cost only $50. Or he'll substitute watered moonshine supplied by one of the drinkers, despite the fact that some batches make consumers go blind. Or he can charge $25 per drink and cater only four wealthiest drinkers. (Works okay with a luxury such as beer, but what about necessities, such as food or medical care?) Conclusion: taxes aren't like beer. The analogy doesn't work. P.S. Everybody in our society pays some taxes. Maybe not federal income tax, depending upon how much they earn and how many exemptions and credits they can scrounge (not related to how much wealth they earn, incidentally). But they pay sales tax if they buy anything at a store. They pay property tax, either directly or as part of their rent (unless they are homeless). They pay tax if they own a vehicle.

voevoda 7 years, 5 months ago

The beer doesn't cost $100 if you're willing to reduce the portions, substitute dishwater for One through Six, furnish the bar with broken lawn furniture, leave the hole in the roof unmended, tell drinkers to bring their own cups and clean up after themselves, and charge them a dollar to place an order with the bartender.
I realize, Liberty_One, that you'd prefer that the government not provide any services at all--no health care, no education, no roads, maybe even no defense. There are countries where that's the situation--where the government exists to help the rich. There are even places where the government has effectively stopped doing anything. Maybe you'd like to live in such a place, but most of the rest of us wouldn't. Here in America, we traditionally have wanted government "of the people, by the people, and for the people."

Scott Drummond 7 years, 5 months ago

The fallacy is that we all share equally in the beer in this country.

Why not make it an accurate analogy:

The first four men receive beer "recycled" and previously drunk by the 70 year old hag who frequents the joint. The fifth man receives 1/2 cup of the backwash of those drunks who have passed out before finishing their glasses The 6th and 7th man receive a thimble or shot glass full of unadulterated 3.2 beer The 8th guy gets a full glass of Budweiser.....Light The 9th guy gets a full glass of Ad Astra Ale The 10th guy gets as much beer of any sort he wishes for as long as he wishes.

Now, why is this fair?

voevoda 7 years, 5 months ago

TheWhirl, You have confused fairness with Communism. scott3460 is correct that the current system isn't fair, because Ten get lots of beer for free, and the first five guys get swill that is called "beer." He didn't say that everybody must get an equal share. scott3460 didn't bring up "ability," but it ought to be a factor, too. Maybe the first four work hard, but still get swill. That's not fair. Maybe Ten is a rich lazy slob, but he still gets free beer. That's not fair.
It's the essence of capitalism that people should be rewarded tangibly for their labors. However, in our system, a lot of people who work very hard and behave very responsibly are still very poor, and it's Ten who is keeping them that way. That's a capitalist system run amuck.

Scott Drummond 7 years, 5 months ago

Your experience has been deficient and you, as a result, are the poorer yourself because of it. Poorer in ways material wealth will never replace.

booyalab 7 years, 5 months ago

Why can't the guys who got the lousy beer just quit going there? How is the bar owner able to accommodate the guy who gets as much of any beer he wants?

bolshavik_vw 7 years, 5 months ago

knowing the commerce clause or article one section eight part three of the US Constitution verbatim due to the fact that Indian tribes are mentioned in it, I also know about the supremacy clause. All of the whiners, take back my countriers, birthers, and other clowns should be happy that Mr. Obama hasn't already used it. I mean the Decider used it to shove all kinds of things down our throats over eight years including misguided wars. Andrew Jackson used it against Supreme Court Justice John Marshall and the Cherokee Nation after Worcester V. Georgia went in the Cherokee's favor in the early 1830's. He ignored the court and forced removal. He is the father of state's rights dumblicans and he ignored a Supreme Court ruling against his policies. I love how this country is being taken to redundency by the GOP. Dumb is in again.

Jimo 7 years, 5 months ago

Having now had time to review this latest decision:

  1. The constitutional analysis (commerce clause, necessary and proper clause) was strained and contained objective error. If appellate courts are to uphold this ruling, the appellate court will have to recraft the argument extensively.

  2. The taxation analysis was the epitome of activist jurisprudence. This judge, an apparent clairvoyant, went far beyond the narrow analysis that courts make in reviewing legislation. Courts do not begin their analysis with a presumption of unconstitutionality nor do they sift through legislative history or individuals comments to determine what Congress "really" intended. If a "leftist" judge had done this it would have become a cause célèbre with the Communications Department of the Republican Party (a/k/a, Fox).

  3. Victory in the Supreme Court (appeal of the appeal) will hang on Roberts and Kennedy and require that they radically overturn settled law and indeed their own previous decisions. (When I say settled law, I include, inter alia, McCulloch v. Maryland, 1814, broad power to enact enforcement of anything within Congressional power such as regulating interstate commerce, and Wilkard v. Fillburn, 1942, not participating in interstate commerce affects interstate commerce and is subject to federal regulation.)

  4. This is a long term appeal. Nothing here qualify for any accelerated decisionmaking.

  5. This is a significant defeat for the most extreme anti-reform advocates. The judge refused to order any immediate action based on his ruling as well as refused to strike down the remainder of the statute.

  6. The mandate is of little or no importance. Reform efforts remain in place. Government has multiple alternative methods to ensure near universal insurance coverage. (E.g., the IRS could offer a not insignificant tax credit for those with insurance. The 1:1,000,000 person who invokes his "liberty" rights can skip the tax credit and pay the regular, higher, tax rates - the equivalent of a tax - unless of course this activist judge discover the "real" cause of the tax credits and strikes them all down. ROFL)

jafs 7 years, 5 months ago

How on earth is the personal purchase of health insurance in your own state anything that should/would fall under the interstate commerce clause, which is designed to allow the federal government to create even playing fields between states?

Not purchasing in state insurance isn't not participating in "interstate" commerce either.

Allowing such a broad interpretation to stand means the federal government has the right to get involved in far too deep a way in our personal lives and choices, in my humble opinion.

The mandate is central to the idea that costs will not rise drastically as a result of other parts of the bill - without it the risk pool wouldn't increase enough to keep premiums reasonable.

If the government offers significant tax credits for purchasers of insurance, that will significantly affect government revenues and increase deficits.

Jimo 7 years, 5 months ago

A) the interestate commerce clause does not exist to create an "even playing field between states" but rather guarantee that the federal government can regulate a national economic system for the benefit of all consumers.

B) "not participating" in a market is participating in a market and has been expressly held to be so by the Supreme Court long ago and is settled law.

C) No one does not "participate" in the health care market. At best, someone may temporarily not participate. Every single person will - WILL - participate in this market and those small few who temporarily do not rely upon the existence and health of that market for when they do.

D) Allowing a broad interpretation to stand means things stay as they've been for the best part of century rather than adopting a radical change - with consequences for not only many other markets but who segments of law - consequences it seems that you haven't begun to reflect upon.

E) The right wing should be cautious about their opposition. Again and again (and again) they miscalculate and end up with even worse conditions than they could have. One obvious solution to a "no mandate" rule is to establish a tax financed, single payer, Medicare for all system, which is precisely what the GOP fears most.

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