Health Care Reform – k and k Health Care

While the disease spread, and hundreds or even thousands died, would you thank the judge for his fidelity to the pre-1937 vision of the Commerce Clause? Or would you think that, no matter what was written in the judge’s order, the irretrievable spread of the epidemic really had affected commerce and should have been stopped?

These reflections were spurred by the decision Monday in the case of Virginia v. Sebelius, the lawsuit brought by Ken Cuccinelli, Virginia’s right-wing zealot attorney general, to spare the uninsured of his state the indignity of government-funded health care. Judge Henry Hudson of the United States District Court for the Eastern District of Virginia agreed with Cuccinelli that the so-called “individual mandate” provision of the Act exceeds the Commerce Clause because it seeks to “compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.”

For those of you scoring at home, currently it’s Affordable Health Care Act 2, right-wing opponents 1. Two federal district courts have upheld the program; Judge Hudson is the first district judge to hold against it. That’s neither here nor there–the final score will almost certainly be a best-of-nine championship series played here in Washington at the Supreme Court. But it does underline that the issues in the case are close. The weight of academic opinion so far supports the Act, but some of the very brightest (and perhaps not coincidentally most conservative) of my colleagues disagree.

Readers would do well to discount the importance of Judge Hudson’s decision, which is about as significant as an early NBA playoff game. And partisans might nurture the Christmas spirit by refraining either from the right-wing spike dance or the progressive chant of “You’re blind, ump!” These are hard issues; federal judges, by and large, don’t ask for these cases to land in their courtrooms. Having read the opinion, I see nothing in it to suggest that Judge Hudson is not doing his duty to construe the statute as he reads it, compare it with the Constitution as he understands it, and announce whether the two go together. His opinion was respectful to both sides and–in stark contrast to the intemperate earlier interim decision of Senior Judge Robert Vinson of a Florida district court–devoid of inflammatory rhetoric, judicial triumphalism, or talk-radio style taunting. No one can seriously argue that the judge did not earn his salary.

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