Conservatives Ecstatic Over Health Care Ruling Legal Experts Say Is Wrong

››› ››› ADAM SHAH

Conservative media are praising a federal court decision striking down a portion of the Affordable Care Act, with Fox's Peter Johnson Jr. saying people should give the judge's opinion to their children, their church, and their synagogue because "this is the Constitution." However, other federal judges have upheld the statute, and legal experts from across the political spectrum agree that the opinion was incorrect.

Conservatives Laud Decision Striking Down Individual Mandate

Fox's Johnson: "People Have To Read This [Opinion]. It's The Dream Of The Tea Party" And "Americans Who Say 'The Constitution Means Something.' " On Fox News' Fox & Friends, Johnson, a Fox News legal analyst, discussed the decision by Virginia federal district judge Henry Hudson to strike down the individual mandate portion of the Affordable Care Act, which requires that most people purchase health insurance or pay a fee:

JOHNSON: [T]his is a ringing proclamation here in America. And it gives hope to so many people, December 13, 2010, in the case of Virginia against Sebelius, that this district court judge says you've gone crazy with our constitution and that you are bowdlerizing and exaggerating what the Welfare Clause of the Constitution is, what necessary and proper is. What the Commerce Clause is. You cannot regulate, according to this district judge, inactivity, and you cannot demand with a fine -- a fine, not a tax -- that you buy insurance or that you buy an avocado or that you buy a car or that you do anything because the government says you have to.


JOHNSON: What the judge did in a 40-something page decision and I suggest that people go to the Fox News Web site and they download it, and they print it, and they give it to their children, and they give it to their civics class, and they give it to folks at church on Sunday at the synagogue on Saturday. And they say this is the Constitution. This is the living, breathing Constitution. This is what the General Welfare Clause is. This is what it means to be unnecessary and improper and an infraction on our rights as Americans.


JOHNSON: Great opinion. People have to read this. This is the dream of the Tea Party and this is the dream of a lot of lawyers and a lot of Americans who say the Constitution means something. [Fox News' Fox & Friends, 12/14/2010]

McCaughey: The "Ruling Emphasized The Importance Of Upholding The US Constitution's Limits On Federal Power." In an op-ed titled, "ObamaCare overreach," serial health care misinformer and former New York Lt. Gov. Betsy McCaughey stated:

Health and Human Services Secretary Kathleen Sebelius tried to ridicule Virginia's strategy as mere politics and get the Virginia case thrown out of court. [Virginia Attorney General Ken] Cuccinelli told the court that, "in the view of Secretary Sebelius, federalism is so withered and near death that states lack the power and right to go to federal court" to stop excessive federal power. But federalism is not dead. Hudson's ruling emphasized the importance of upholding the US Constitution's limits on federal power and drew a clear boundary around the Commerce Clause.

The Obama administration claims that the Commerce Clause gives Congress the authority to mandate coverage. It cited Wickard v. Filburn (1942), in which the court ruled that the federal government could limit what a farmer can grow to feed his own animals. Similarly, in Gonzalez v. Raich (2005) the court found that the federal government could bar a sick person from cultivating a mere six stalks of marijuana, even where state law allows it. Growing something for personal use doesn't seem like interstate commerce, said the justices, but individual decisions in the aggregate could have an impact on national commerce.

Sebelius stretched the meaning of commerce even farther, to include an individual's decision not to do something. Allowing people to forego insurance will raise the price of coverage for others, she said. Hudson resoundingly rejected Sebelius' artifice, warning that it could be used to give the federal government authority over people's decisions about their own nutrition, transportation and housing and "invite unbridled exercise of federal police power." [New York Post, 12/14/2010]

Two Federal Judges Have Upheld Law's Individual Mandate

Judge Moon: "Congress Acted In Accordance With Its Constitutionally Delegated Powers" When It Passed The Mandate. Fox & Friends co-host Steve Doocy noted during the segment that White House press secretary Robert Gibbs pointed out that two judges have found that the individual mandate is constitutional. Indeed, in his decision, Judge Norman Moon of the Western District of Virginia stated:

For the reasons provided below, I hold that Congress acted in accordance with its constitutionally delegated powers under the Commerce Clause when it passed the employer and individual coverage provisions of the Act.


Far from "inactivity," by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance. As Congress found, the total incidence of these economic decisions has a substantial impact on the national market for health care by collectively shifting billions of dollars on to other market participants and driving up the prices of insurance policies. [U.S. District Court for the Western District of Virginia, 11/30/10]

Judge Steeh: Individual Mandate "Is A Reasonable Means Of Effectuating Congress's Goal" Of Regulating Interstate Health Care Market. From a decision on the constitutionality of the individual mandate by Judge George Steeh of the Eastern District of Michigan:

There is a rational basis to conclude that, in the aggregate, decisions to forego insurance coverage in preference to attempting to pay for health care out of pocket drive up the cost of insurance. The costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers. The decision whether to purchase insurance or to attempt to pay for health care out of pocket, is plainly economic. These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance. These are the economic effects addressed by Congress in enacting the Act and the minimum coverage provision.


The Act regulates a broader interstate market in health care services. This is not a market created by Congress, it is one created by the fundamental need for health care and the necessity of paying for such services received. The provision at issue addresses cost-shifting in those markets and operates as an essential part of a comprehensive regulatory scheme. The uninsured, like plaintiffs, benefit from the "guaranteed issue" provision in the Act, which enables them to become insured even when they are already sick. This benefit makes imposing the minimum coverage provision appropriate.


The minimum coverage provision, which addresses economic decisions regarding health care services that everyone eventually, and inevitably, will need, is a reasonable means of effectuating Congress's goal. [U.S. District Court for the Eastern District of Michigan, 10/7/2010]

Legal Commentators From Across Political Spectrum Say Ruling Was Wrong

Former Cornyn Adviser Kerr: Health Care Decision Has "A Fairly Obvious And Quite Significant Error." George Washington University Law Professor Orin Kerr, who served as Sen. John Cornyn's (R-TX) special counsel for the Sonia Sotomayor confirmation proceedings and has previously said that "there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress's Article I power," wrote in a blog post:

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. The key line is on page 18:

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.

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. If you say, as a matter of "logic" or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that's not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way. [Volokh Conspiracy, 12/13/10]

Law Professor Balkin: Hudson's Commerce Clause Holding Is "Blinkered To Reality." From an opinion piece by Yale Law professor Jack Balkin:

When uninsured individuals get sick, they borrow money from their families to pay for the costs of health care. They buy over-the-counter medicines. Above all, they go to emergency rooms and demand medical services. In 2008 these demands cost hospitals some $43 billion. All of these are significant effects on interstate commerce.

But according to Judge Hudson's decision striking down the individual mandate, these effects on commerce are completely irrelevant and Congress cannot take any of them into account. Congress cannot regulate uninsured individuals, Judge Hudson explained, because these individuals are not doing anything when they fail to buy insurance -- yet they are borrowing money, purchasing drugs, or visiting emergency rooms instead.

This is pure sophistry. Such arguments are reminiscent of the constitutional struggles over the New Deal, when the Supreme Court's conservative majority argued that no matter how great an effect labor strikes had on the national economy, Congress could not regulate working conditions because their effects on interstate commerce were only indirect. Judge Hudson's decision is yet another example of a long line of formalist jurisprudence that is blinkered to reality. [The New York Times, 12/13/10]

NRO's Severino: The Decision Erroneously "Conflates" Analyses of Different Constitutional Provisions. Carrie Severino, chief counsel for the conservative Judicial Crisis Network, has stated that the individual mandate is unconstitutional. Nevertheless, she stated that Hudson's interpretation of the Necessary and Proper Clause of the Constitution was incorrect:

The court noted that, rather than arguing that the individual mandate had an "independent freestanding constitutional basis," the government was focused on it as necessary to its other health-insurance-market reforms. This sounds like a Necessary and Proper Clause argument, but Judge Hudson treats it as a Commerce Clause argument, which conflates the two analyses (perhaps as a result of the briefs having done so -- I have not yet read them all). Hudson later states that the Necessary and Proper Clause cannot apply in this case if there is no Commerce Clause authority. On the contrary, I believe it is only relevant if there is no independent (i.e. Commerce Clause) basis for the mandate.

Hudson's error seems to stem from his statement that only constitutional means are permitted under the Necessary and Proper Clause. This could indicate, as seems most logical, that only means that don't violate constitutional prohibitions are possible. But Hudson interprets it to allow only means that have independent constitutional authority. If that were so, the Necessary and Proper Clause would be meaningless and give Congress no power it did not already possess.

In fact, there are good reasons the Necessary and Proper Clause doesn't apply here (shameless plug: check out JCN's amicus brief on behalf of Rep. Boehner in the Florida litigation that covers that Clause), and it's a shame this decision misses a chance to discuss them. [National Review Online, 12/13/10]

Law Professor Tushnet: Hudson's Decision Is "Inconsistent With The Governing Precedents." From a post by Harvard Law professor Mark Tushnet:

I don't think anyone was surprised that conservative Judge Henry Hudson held the individual mandate unconstitutional. What's surprising is the traction that the distinction he relied on has gotten. Congress, according to Judge Hudson, has the power to regulate economic activity but not economic inactivity, that is, a failure to participate in some market such as the insurance market. This distinction seems to me unsound in principle but, more important, inconsistent with the governing precedents. The primary one is Wickard v. Filburn, which is usually described as holding that Congress has the power to regulate economic activities that, taken in themselves, have no substantial effect on interstate commerce but when aggregated do have such an impact. The economic activity in Wickard was the consumption on a person's own farm of wheat grown on that farm.

What the farmer did, though, could just as easily -- indeed, probably more easily -- be described as a failure to purchase wheat in the general market. (Justice Jackson's opinion made the point in this way: "The effect of the statute before us is to restrict the amount which may be produced for market and the extent, as well, to which one may forestall resort to the market by producing to meet his own needs" (emphasis added). Those who do not purchase health-care insurance "forestall resort to the market" by paying the full out-of-pocket costs of their medical care when they incur those costs (or at least assert that they are willing to do so) or by relying on charity to cover the costs (although I would think that in principle the person should forgo that portion of the charity care attributable to the public decision to grant tax-exempt status to charitable health care -- or at least that Congress could require that the person do so). [Balkinization blog 12/13/10]

Law Professor Koppelman: The Decision Invented "Bizarre New Legal Theories." From a post by Northwestern Law Professor Andrew Koppelman:

Today's federal ruling striking down the Obama health care law is powerful proof that the law is, in fact, constitutional.

This apparent paradox emerges from the bizarre new legal theories that Judge Henry Hudson had to invent in order to invalidate the law - theories that, if taken seriously, would randomly destroy large parts of federal law.


Judge Hudson correctly observes that exercises of the Necessary and Proper power "must not violate an independent constitutional provision." But then he reads this to mean that it may not go beyond the specifically enumerated powers. The mandate is unconstitutional because "no specifically articulated constitutional authority exists to mandate the purchase of health insurance." This does more than implicitly overrule McCulloch v. Maryland. It reads the Necessary and Proper power out of the Constitution, because it won't allow it to add anything to the enumerated powers. [Balkinization blog, 12/13/10]

Health Care Law Professor Hall: Decision "Fumbled" Its Necessary And Proper Clause Analysis. From a blog post by Wake Forest Law Professor Mark Hall:

On that question [of whether the individual mandate was Necessary and Proper], the Richmond court reasoned inscrutably (p. 24) that

"Because an individual's personal decision to purchase-or decline to purchase-health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary."

What?? I thought the whole point of the N&P clause was to expand powers beyond those enumerated. If the Commerce Clause itself provided the power, then we wouldn't need N&P; thus, the ONLY time we need N&P is when the power in question is beyond enumerated powers.

The court continued:

"This clause grants Congress broad authority to pass laws in furtherance of its constitutionally-enumerated powers. This authority may only be constitutionally deployed when tethered to a lawful exercise of an enumerated power. . . . The Minimum Essential Coverage Provision is neither within the letter nor the spirit of the Constitution. Therefore, the Necessary and Proper Clause may not be employed to implement this affirmative duty to engage in private commerce."

What!? (I'm channeling Jon Stewart here). Doesn't this reason that the power in question is untethered because it's not tethered to itself? Shouldn't we be looking to link to OTHER powers or objectives that ARE within the Commerce Clause? The government's clearly stated position, summarized by the court itself, is obviously that regulating how insurance is offered and sold is easily within the core of the commerce power. That forms the anchor to which the individual mandate is tethered - a straightforward position to which the court never responded. [Health Reform Watch, 12/13/10]

Fox Paints Judge As Nonpartisan, But He Has Deep GOP Ties

Fox's Johnson: Judge Acted In A "Dispassionate, Non-Political, Straightforward, Law-Based Way." From Fox & Friends:

JOHNSON: Well, what this judge did in a dispassionate, non-political, straightforward, law-based way was to say "No, it doesn't fall under the Commerce Clause." And let's look at what he said in terms of the constitutionality here. He said the minimum essential coverage provision is neither within the letter nor the spirit of the Constitution. Therefore, the Necessary and Proper Clause may not be employed to implement this affirmative duty to engage in private commerce. [Fox News' Fox & Friends, 12/14/2010]

Judge In The Case Repeatedly Received Appointments From GOP Presidents. Hudson was appointed as U.S. attorney for Eastern District of Virginia by President Ronald Reagan in 1986. He was subsequently appointed as director of the U.S. Marshals Service by President George H.W. Bush in 1992. In 1998, he was appointed by Republican Governor Jim Gilmore to be a Virginia state court judge. And in 2002, he was appointed to his current position as a federal judge by President George W. Bush.

Judge Ran in Elections as a Republican. The Washington Post reported that Hudson was elected as Arlington County commonwealth attorney as a Republican and that he "briefly ran against U.S. Rep. James P. Moran (D-Va.) in 1991." [The Washington Post, 12/7/10]

Judge Chaired Reagan Administration Commission On Pornography. As Politico reported:

By far the most colorful item on the resume of U.S. District Court Judge Henry Hudson, the jurist who ruled unconstitutional a key part of the Obama health care law on Monday, is his stint as head of Attorney General Ed Meese's commission on pornography during the 1980s.

You can view the report, released in 1986, here. Hudson's personal views, as stated in the report, are here. He complained that the report's finding should have been "couched in more forceful language, and that our recommendations for enhanced law enforcement, particularly with respect to violent and degrading materials, [should have been] likewise more pronounced."

Hudson also dissented from a commission recommendation that obscenity prosecutions not be brought in connection with written works that describe adult conduct. [Politico, 12/13/10]

Judge Owns Stock In GOP-Allied Firm Associated With VA AG Who Brought The Lawsuit. As the Huffington Post's Sam Stein and others have noted, Hudson's financial disclosure forms show that for several years Hudson has owned shares in Campaign Solutions, Inc. According to the most recent publicly-available disclosure form, in 2009, Hudson owned between $15,001 and $50,000 in Campaign Solutions stock. Stein reported:

A powerhouse Republican online communications firm, Campaign Solutions, has done work for a host of prominent Republican clients and health care reform critics, including the RNC and NRCC (both of which have called, to varying degrees, for health care reform's repeal). The president of the firm, Becki Donatelli, is the wife of longtime GOP hand Frank Donatelli, and is an adviser to former Alaska Gov. Sarah Palin, among others.

Another firm client is Ken Cuccinelli, the Attorney General of Virginia and the man who is bringing the lawsuit in front of Hudson's court. In 2010, records show, Cuccinelli spent nearly $9,000 for Campaign Solutions services. [Huffington Post, 7/30/10]

Stein also reported that Campaign Solutions says:

Judge Hudson has owned stock in Campaign Solutions going back 13 years to the founding of the company or well before he became a federal judge. Since joining the federal bench, he has fully disclosed his stock ownership in the company. He is a passive investor only, has no knowledge of the day to day operations of the firm, and has never discussed any aspect of the business with any official of the company. [Huffington Post, 7/30/10]

A blog post on The Washington Post's website reported that "In August, Cuccinelli called Hudson's tie to the company 'so unbelievably distant as to be irrelevant.' " The Post also reported:

In a recent interview, U.S. District Court Judge Henry E. Hudson said that he invested in the company before joining the bench in 2002 and that he has no day-to-day involvement with the company.

In the interview, a rarity for a sitting federal judge, Hudson said he and his wife invested in Campaign Solutions Inc. at the invitation of friend and neighbor Becki Donatelli, the company's founder and a major Republican fundraiser, more than a decade ago. Other than suggesting the firm to some charitable organizations, he's had no involvement since. [, 12/14/2010]

Posted In
Health Care, Health Care Reform
Peter Johnson Jr., Betsy McCaughey
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