Gerry Canavan

the smartest kid on earth

The Exciting Return of Health Care Policy Tuesday

with one comment

It’s an exciting week for players of “Is Health Care Reform Constitutional?”: it isn’t! At least not according to U.S. District Court Judge Henry E. Hudson. This now places the tally at either 2-1 or 14-1, depending on how you count—though of course the real determinant of the constitutionality of health care reform will still be however Anthony Kennedy feels when he wakes up that morning, just like the Founders intended. Tim Jost from Washington and Lee University Law School says “This decision is very defective .. and will be reversed by the appellate court or the Supreme Court.” Orin Kerr (no liberal) agrees, claiming the decision is significantly flawed insofar as it misunderstands the relationship between the Necessary and Proper Clause and the Commerce Clause.

It’s at this point we might observe that it is difficult to get a man to understand something when his salary depends on his not understanding it. I’m surprised Hudson didn’t recuse himself in light of this.

In any event, the consequences of this decision if it is eventually upheld by SCOTUS remain unclear. Ezra Klein thinks the good news is that even a right-leaning judge like Hudson limited his decision to the mandate, despite plaintiff request; that’s a good sign for the constitutionality of the rest of ACA. Some progressives think the law is actually better without the mandate. And the health insurance lobby can’t be happy with this decision:

If you strike the individual mandate but leave the rest, you have a system that could easily be patched up with a better mechanism to avoid free-riding. The real loser here is the health insurance lobby. Health insurers would have preferred to avoid any health care reform at all. But the health insurance lobby’s second-highest priority would be a working system with an individual mandate. A world in which they cannot discriminate against sick people but in which healthy people can avoid buying insurance until they’re sick is a nightmare.

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  1. […] sources tell me that this is the lawsuit to watch as it makes it way through the courts; the decision rendered by Judge Hudson earlier in the week is much more a […]


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