Theodore's World: Big Blow Dealt to Obamacare

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August 08, 2010

Big Blow Dealt to Obamacare

Federal judge clears way for constitutional challenge that could reach Supreme Court

Ms. McCaughey is a former lieutenant governor of New York and author of "Obama Health Law: What It Says and How to Overturn It" (Encounter, 2010).

ObamaCare and the Constitution—An Update (no severability clause in it!)


Last November, a reporter asked House Speaker Nancy Pelosi if it was constitutional for Congress to require Americans to buy health insurance. Ms. Pelosi responded, "Are you serious?"

On Monday, U.S. District Judge Henry Hudson got serious. He denied Health and Human Services Secretary Kathleen Sebelius's motion to dismiss a lawsuit brought by the state of Virginia challenging the new health law. His ruling stated that it is far from certain Congress has the authority to compel Americans to buy insurance and penalize those who don't.

Judge Hudson's ruling paved the way for a trial to begin on October 18, with possible appeals all the way to the Supreme Court, a lengthy process. Some states will likely delay creating insurance exchanges and slow down other costly preparations for ObamaCare until its constitutionality is determined by this case.

If mandatory insurance is declared unconstitutional, the entire health law could collapse like a house of cards. Most complex legislation states that if one part of the law is struck down, other parts remain enforceable. But authors of ObamaCare chose to omit that clause, suggesting that the health overhaul won't work without mandatory insurance.

Critics say that the requirement tramples the Constitution. Twenty-one states and several individuals are already suing to overturn it. Virginia went one step further, enacting a law that makes it illegal to require any resident to purchase health insurance. The Virginia measure won solid support from both Republican and Democratic state legislators. Despite what Mrs. Pelosi tried to suggest, questioning the constitutionality of ObamaCare is not partisan posturing. A fundamental principle is at stake.

In 1993, the Congressional Budget Office said that the mandatory insurance provision in President Bill Clinton's health plan would be "an unprecedented form of federal action." In 2009, the Congressional Research Service applied a similar caveat to ObamaCare.

Mr. Cuccinelli argued that Congress ignored these warnings. ObamaCare, he said, was "cobbled together in secret, passed by the Senate largely or totally unread, on a party line vote literally in the dead of night on Christmas Eve."

Judge Hudson ruled that the court must do what Congress failed to do—apply the Constitution.

Wild Thing's comment.......

It will come down to Supreme Court votes. You have four auto on the left, four auto on the right, with Kennedy swinging between the two. Kagan would be fairly to the left of Stevens, but will vote no differently than Stevens would have.

Lord, please bless and keep the Conservatives on the court.

Posted by Wild Thing at August 8, 2010 07:48 AM


Yes indeed, WT, you hit the nail on its head. And you also point out the most damaging consequence of Obama's election. Health Care law can be rescinded; the Wall Street reform act can be rescinded; Deficits can be reduced; Increased taxes can be reduced; the Military can be rebuild. But, a leftist court stays in power for an average of 25 years and in that time can do more damage to the Republic than any law, any congress or any president!

Posted by: Eddy at August 8, 2010 02:58 PM

A right is that which can be exercised without anyone's permission. When you have to ask permission you are not free, you are a slave. That's not America.

I know this, this jail business with not complying with "You must buy Health Care Insurance" is basically a "Bill of Attainder" in other words a punishment without due process. Article 1, section 9. Where is the crime, an American is exercising his right to say no, I don't want your insurance.(period)

Posted by: Mark at August 8, 2010 03:40 PM

Eddy, thank you for al lof that.

Mark, ditto that so much!!

Posted by: Wild Thing at August 8, 2010 07:41 PM