Obviously, the big news this morning is the “individual mandate” decision rendered by Federal District Judge Hudson in Commonwealth of Virginia v. Sebellius, et al. Judge Hudson ruled that the individual mandate exceeded Congress’ Commerce Clause power and was, therefore, unconstitutional.
First, we have opponents of Obamacare chortling that the end is near, and secondly, we have Sen. Dick Durbin (D-IL) saying that (as if it were a baseball game) the Dems are up 2-1.
Neither is accurate, and both are misleading.
Opponents of Obamacare have seemingly forgotten that the individual mandate, the centerpiece of Virginia’s lawsuit against PPACA, was largely created and added to the legislation as an inducement to health insurers. Without it, due to adverse selection, health insurance companies will be destroyed in relatively short order. (I don’t believe that anyone even casually schooled in basic insurance principles, or simple economics, would disagree with that statement.)
Unfortunately, Judge Hudson severed the individual mandate from the Act, rather than rule that, given the unconstitutional nature of the individual mandate, the entire act was unconstitutional. While not without precedent, it is troubling, since the Act was passed without a severability clause, a small but important piece of legal boilerplate that says, essentially, if any part of this legislation is struck down, the rest remains. This means that, as of this moment, the funding mechanism for Obamacare has essentially been tossed, along with any “directly-dependent provisions”, but not the rest of Obamacare.
The thrust of the individual mandate argument demands that the entire Act be deemed unconstitutional. Assuming severability, the portions of the Act remaining will still be law, and that is an even bigger recipe for disaster (as if things could get any worse!).
Cut to the chase: This decision will ultimately be taken up by the Supreme Court, and could bypass the traditional appellate review. As the Virginia Attorney General said at one point this morning, “I’m sure it will be a 5-4 decision… I’m not sure which 5-4”. Justice Kennedy, anyone?
As to the 2-1 scorecard, Sen. Durbin is spinning the news for political purposes, of course. At least one of the other lawsuits wasn’t based on the same narrow criteria – Thomas More Law Center brought suit strictly on federally-funded abortion issues, while the suit involving Liberty College focused on the same individual mandate, albeit with the supporting argument that premiums would be used to pay for abortions. The reality is that the “score”, if you want to look at it that way, is really 1-1-1 (and I’m being charitable).
All of this pales in comparison to the 20 state lawsuit, filed in a Florida federal court (of which Colorado is a participant), suing the federal government over PPACA. That is where, in this observers’ opinion, the real action will be. For all I know, the Virginia case could seemingly be combined with the bigger, 20 state action when reviewed by the Supremes.
See comments by the Colorado AG on the Virginia ruling. Also, here.
Additional comments here, and here. And a legal opinion, here.