"Judge Hudson's Decision"

Sydney M. Williams

Thought of the Day

“Judge Hudson’s Decision”

December 15, 2010

Despite my intimate knowledge of the law and of courts being limited to once, at the age of 16, being arrested for driving while intoxicated in Peterborough, NH and once being empanelled on a jury in New York City, I nevertheless still feel fully qualified to comment on Judge Henry Hudson’s decision Monday that a key provision of the Obama healthcare bill is unconstitutional. Judge Hudson sits on the bench for the U.S. District Court for Eastern Virginia. He was appointed to the position by President George W. Bush in 2002. On Monday he ruled that a key provision in the bill was unconstitutional. That provision is the requirement that everyone buys health insurance, or be subject to a fine. That requirement – the individual mandate – is, of course, the essential element to the Patient Protection and Affordable Care Act of 2010. Without that mandate, the lynchpin for the bill is gone. Since it is my opinion that the bill only makes a bad system worse, I applaud the decision.

However, for liberals all is not lost. Two weeks earlier Judge Norman Moon of the U.S. District Court for Western Virginia, listening to the same arguments, ruled, that the individual mandate is an essential component and that the law is a “rational” way to regulate how people pay for healthcare. Judge Moon was nominated to the Court in 1997 by President William J. Clinton.

Both judges, interestingly, according to a report in the Wall Street Journal, showed skepticism “toward the government’s argument that the mandate could also be justified under Congress’s taxing power.” In a separate article in the Journal, Janet Adamy wrote: “Judge Hudson also shot back at the administration’s argument that federal taxation powers give it the right to levy the penalty on those who forgo insurance, noting that the administration had avoided using the unpopular word ‘tax’ during the law’s debate – only to employ it later for legal reasons.”

The judicial disagreements stem from differing interpretations of the “Commerce Clause” in the U. S. Constitution. That clause embedded in Article 1, Section 8 reads, obscurely, “Congress shall have the power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” (I sometimes wonder if the ambiguity in the wording of the Constitution was purposely designed by the Founders to ensure that lawyers would always be employed.)

The New York Times, in an editorial yesterday, wrote: “Yet it seems clear that decisions not to buy insurance will, in the aggregate, affect costs in the broader health care markets.” Exactly, but that begs the question as to the constitutionality of a requirement to purchase insurance.

Betsy McCaughey, the former Lieutenant Governor of New York and a Ph.D. in constitutional history, suggested in an interview in Newsmax that there will be a lengthy appeal process with a final decision by the Supreme Court “sometime before the 2012 presidential election.” In reference to Judge Hudson’s ruling, she said: “This is not about health insurance, this is about freedom.” Ms. McCaughey’s take was the same as the Judge’s. “At its core,” Judge Hudson wrote, according to the New York Times, “this dispute is not simply about regulating the business of insurance – or crafting a scheme of universal health insurance coverage – it’s about an individual’s right to choose to participate.” It is that Right of the individual that is at the core of his disagreement with this specific provision of the bill.

The possibility of repeal, for a variety of reasons, is remote, but challenges such as that of Judge Hudson will ultimately lead to the Supreme Court, probably sometime in 2012, before the presidential election. Despite providing the best healthcare in the world – for example, where else would King Abdullah come for back surgery? – the current U.S. healthcare system does not work well. It has become too expensive. There are too many uninsured. Those with pre-existing conditions are too often denied coverage. The current system – employer based – has the disadvantage that the consumer is too far removed from making decisions as to the care he/she wants and the costs they are willing to pay. Federalizing healthcare will only serve to further distance the consumer.

It has always seemed to me that not only was ObamaCare a usurpation of government authority, but more importantly it would be filled with waste and inefficiencies. Why not let insurance companies compete across state lines? Why not let individuals purchase healthcare on the same pre-tax terms as employers? Why not let consumers design and purchase a plan that fits their individual needs? If the healthcare act is such a good deal, why did Congress and the Executive branch exempt themselves from participation?

The Patient Protection and Affordable Care Act is dependent on mandating that all people buy insurance, or pay a fine. Otherwise those with pre-existing conditions, under the proposed act, would be charged discriminatory rates. It is the underlying foundation on which the act was erected. But, in doing so, it violates the concept of the right of the individual to exercise Choice. To envision the future of a federally mandated healthcare plan, one has only to look at the UK and its NHS. In contrast, a system which allows the individual to make personal choices about the quality and quantity of healthcare received, and which permits insurance companies to compete across state lines – free market methodologies – should offer better and less expensive healthcare. Of course that diminishes the role of government, a condition many liberals find untenable.