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Posted at 4:40 PM ET, 12/13/2010

Health care: Legislating from the Bench

By E.J. Dionne

"Every judge I appoint," George W. Bush declared, "will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench."

Oh, really? Well, Judge Henry E. Hudson, a Bush appointee, has just "amended" the health-care law by striking down the provision requiring individuals to buy health insurance. That sure sounds like "legislating from the bench" to me. Aren't the elected branches of government owed a lot of deference by the courts in enacting social policy?

Of course, the rhetoric about "legislating from the bench" is largely, well, rhetorical. When a judge tosses out a law you support, he or she is legislating from the bench. When a judge undoes a law you don't like, he or she is just "interpreting" the Constitution. Can we please at least be honest that most of the "judicial activism" we now confront is coming from conservative judges undoing progressive laws?

As Ezra Klein points out, this decision could have been much worse.

Hudson was expected to rule against the mandate. What heartens supporters of health-care reform is that he wasn't nearly as activist as he might have been. He kept the rest of the health care law intact and did not block its implementation, since the individual mandate doesn't take effect until 2014, leaving plenty of time for further litigation.

And so far, judges are 2-to-1 in favor of the constitutionality of the mandate. Again, Ezra: "Hudson's ruling is the third from a district court so far. Previously, Judge Norman Moon found the mandate constitutional, and so too did Judge George Steeh. Both Steeh and Norman were Clinton appointees, which is to say that so far, the rulings are proceeding along predictably partisan lines." The seeming partisanship of the jurisprudence suggests that this is a classically "political" question better decided by the elected branches of government than by judges.

There would be ways to preserve the health-care law's basic thrust if the U.S. Supreme Court ruled the mandate unconstitutional. But here is an entertaining thought for you: The whole point of the mandate is to preserve a strong private insurance market as an alternative to a government-dominated system. (Medicare for all, for example.) If you want to 1. keep the private market, 2. have universal coverage, and 3. have rules barring insurance companies from excluding people from coverage because of preexisting health conditions, you need some way of having everyone paying into the system. You end up with a mandate or something like it. If the complicated things you need to do to accomplish these three objectives are ruled unconstitutional, the courts will gradually narrow the options for supporters of universal coverage. A single-payer system might be the only option left. Maybe soon we'll see a new organization: "Activist Conservative Judges for Single Payer Health Care."

But we are not there yet, and here's hoping that when it comes to the health-care law, the Supreme Court decides not to legislate from the bench.

By E.J. Dionne  | December 13, 2010; 4:40 PM ET
Categories:  Dionne  | Tags:  E.J. Dionne  
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Comments

The fact remains that if the Government has the power to force to purchase a certain product then the Government has unlimited power.

Support for the mandate is supoort for totalitarianism

Posted by: BradG | December 13, 2010 5:26 PM | Report abuse

Contracts may be cancellation or recission if signed under duress. A law that forces me to participate in a contract might be considered duress in a court of law.

As far as conservatives being the primary source of so-called judicial activism, they have good teachers: it was FDR who wanted to expand the Supreme Court to 13 justices when his initiatives were judged unconstitutional by the Supreme Court.

Posted by: segodnya | December 13, 2010 5:37 PM | Report abuse

Where was the Post's complaint about judicial activism when an lowly district court judge in San Fran ruled Don't Ask, Don't Tell unconstitutional?

Posted by: parkinglot | December 13, 2010 5:38 PM | Report abuse

To follow the Constitution does not equal legislating from the bench. The premise of this article is backed up neither by precedent nor fact. The propoosed bill already has waivers and exemptions for 222 entities that don't have to find "some way of having everyone paying into the system."
It was joke legisaltion from the start and this is only the beginning of the legal challenges against it.

Posted by: Markster72 | December 13, 2010 5:40 PM | Report abuse

I just find it condescending that one side says it is legislating from the bench and the other side is saying that the system works. I wonder what the liberal side would say if Roe vs Wade was shot down. Didn't many progressives herald that as a great win for the people? I am pretty sure that many conservatives said that it was activist judges pushing their own idea of the constitution on them. I am just saying what is good for the goose is good for the gander. You will win some, and then you will lose some. It is a trade off that keeps things in balance.

Posted by: falseID | December 13, 2010 5:41 PM | Report abuse

Before passage of the bill, Republicans charged that most uninsured people were irresponsible deadbeats who could afford to buy health insurance if they wanted. Now, they're defending those same people against predation by the government.

Posted by: jb505 | December 13, 2010 5:41 PM | Report abuse

It's been hundreds of years since, in Marberry v Madison, the first Chief Justice of the Supreme Court articulated the precise logic from which it follows that the Constitution must necessarily take precedence over the laws enacted by Congress.

Whether the Constitution does in fact conflict with this law is the issue, and it will remain to be seen long beyond today. But Dionne appears to be saying that the very notion of a judge striking down a portion of a law as unconstitutional equates to "legislating from the bench," and that simply is not the case. Judiciary authority is non-existent if it does not provide for the elimination of laws that violate constitutional protections.

Posted by: jamessamans | December 13, 2010 5:42 PM | Report abuse

I just find it condescending that one side says it is legislating from the bench and the other side is saying that the system works. I wonder what the liberal side would say if Roe vs Wade was shot down. Didn't many progressives herald that as a great win for the people? I am pretty sure that many conservatives said that it was activist judges pushing their own idea of the constitution on them. I am just saying what is good for the goose is good for the gander. You will win some, and then you will lose some. It is a trade off that keeps things in balance.

Posted by: falseID | December 13, 2010 5:42 PM | Report abuse

In Hudson’s and Cuccinelli’s America there are only two kinds of people, those who have the money and those who die. If the sick can’t pay let them suffer, let them lie on the streets in front of the emergency room screaming in their pain, oozing bile and puss, begging for their lives. Have they closed all the debtor’s prisons? Are there no workhouses? Why can’t these poor people and their even poorer children just die, reducing the surplus population, bringing down the unemployment rate. Perhaps, Hudson, Cuccinelli, and Scrooge have it right after all.

Hudson and Cuccinelli are challenging the wrong law. I believe the Emergency Medical Treatment and Active Labor Act (EMTALA) is the legislation these two debauched, right wing lawyers would really like to attack but are deathly afraid the American people would see them for the amoral political hacks.

“The Emergency Medical Treatment and Active Labor Act (EMTALA)[1] is a U.S. Act of Congress passed in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA). It requires hospitals and ambulance services to provide care to anyone needing emergency healthcare treatment regardless of citizenship, legal status or ability to pay. There are no reimbursement provisions. As a result of the act, patients needing emergency treatment can be discharged only under their own informed consent or when their condition requires transfer to a hospital better equipped to administer the treatment.”

Posted by: RoyFan | December 13, 2010 5:44 PM | Report abuse

Of course it is unconstitution. Government has no right to force people to buy something from private companies. How about if they made a law that you had to buy a car? This is no different.

Posted by: thomasmc1957 | December 13, 2010 5:45 PM | Report abuse

Mr Dionne,

HURRAY for Judge Henry Hudson, who understands & respects the original intent of The Constitution of The United States. - this is not "judicial activism"; instead it is protecting the Constitution from the leftist, extremist, BHO-worshiping, DIMocRATS, who would "rule over us".
(as i write these lines, over 70% of Americans want "obamacare" completely/permanently repealed & replaced with nothing.)

now, it's past time to get this in front of SCOTUS, without further delay, so that this whole wasteful mess is stricken from the laws of the nation & "socialized medicine" is declared UN-Constitutional, once & for all by the SCOTUS.

as the previous poster said, if the federal government can force people to buy health insurance (or anything else that they don't want to purchase), there is no longer real freedom/liberty in the USA.

fwiw, 01/20/13 cannot come soon enough to suit me. - on that date, the citizens will get a new & decent POTUS, to replace the officious, weak, simpering, ignorant, arrogant, loud-mouthed dolt that sits in that office now. = BHO is "a sick joke" as President.
(on the other hand, BHO has convinced just about everyone whom i know that the USA could do quite well, thank you very much, without a POTUS.)

sincerely, Retired MP46

Posted by: retiredMP46 | December 13, 2010 5:48 PM | Report abuse

Dionne: What kind of an IDIOT are you???Making me buy insurance is like making me buy gasoline if I don't have a car !!! Yes I buy insurance but to HAVE to buy is like telling me I have to buy cigaretts ore any other procuct !!! On second thought I believe YOU should have to buy cigaretts and mandated to smoke the until you can't breathe any more !!! Same thing !!!

Posted by: Bud1911 | December 13, 2010 5:49 PM | Report abuse

Great! Does this mean I don't have to buy car insurance any more? I'm forced to have that now, so that must be unconstitutional as well.

Posted by: getjiggly2 | December 13, 2010 5:49 PM | Report abuse

so you cry & call foul when it goes the 'other way'
it was bravo when Chicago went against the court decision about handgun ownership..
same for that cesspool called DC..
don't worry to much..2 of your favorite judges will soon be trying to do the same from the Supreme Court..
'as a Latina'
and the little dwarf..
relaxs you win some..you will hopefully lose many more..

Posted by: Rika2 | December 13, 2010 5:50 PM | Report abuse

As usual Donnie has not idea what he is talking about and has no facts or presedence to back up his opinions. As per usual he is a wind sock for liberalism. interpeting the exiasting law, in this case the constitution, isn't activism it is the mandate of the court. The US constitution does not allow forced obligation into a contract. the drivers insurance mandate is not a forced contract as you have the option not to drive.

Posted by: acdxxx | December 13, 2010 5:51 PM | Report abuse

The author says, "When a judge tosses out a law you support, he or she is legislating from the bench. When a judge undoes a law you don't like, he or she is just "interpreting" the Constitution. "

Apparently he knows what he's talking about - but lacks the introspection to see he's talking about himself.

The judge tossed out a "law" he supports, so the author believes the judge is "legislating from the bench."

I find the rant humorous. Is this a comedy column?

Posted by: quark1 | December 13, 2010 5:53 PM | Report abuse

I just came back from a doctor visit. Would the judge please pay the darn medical bill? Thank you. That's all for today. I will pay for today's prescriptions.

It is highly unlikely that medicare will be there when I retire. So I expect the judge to pay my medical bills.

Posted by: Dave27 | December 13, 2010 5:54 PM | Report abuse

"Great! Does this mean I don't have to buy car insurance any more? I'm forced to have that now, so that must be unconstitutional as well."

Car insurance is a state mandate, not federal. States have that power the federal government does not according to the constitution.

Posted by: rerke | December 13, 2010 5:55 PM | Report abuse

Clearly Congress has the constitutional power to levy taxes. Failure to be insured will simply result in a higher tax on those without insurance, just like failure to have dependent children or a home mortgage, etc, results in paying additional taxes. Or Republicans now arguing that a government fine or fee isn't tax? Now that would be rather hypocritical, but when has that ever stopped Republicans?

Posted by: grp00 | December 13, 2010 5:55 PM | Report abuse

Real nice. Since the outcome of this decision was no to your left-wing political leanings, you go and use the old "it's Bush's fault" line. When are you monkeys going to take some personal responsibility and quit blaming the previous administration for anything that doesn't go your way? Cry-baby liberals.

Posted by: frankc653 | December 13, 2010 5:57 PM | Report abuse

Upholding the original intent of The Constitution of the United States is not "judicial activism"...what a bunch of intellectually dishonest clowns the liberal press/progressives are.

Posted by: KeythL | December 13, 2010 5:58 PM | Report abuse

EJ: Every judge I appoint," George W. Bush declared, "will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench."

Judge Hudson did just that. EJ and other liberals try to reverse the 'activist' charge of which they are on the losing end but majority of people realize ownership is not commerce..of course maybe EJ would like an ultra conservative to force ownership of firearms?

Posted by: rolltr | December 13, 2010 5:58 PM | Report abuse

Unfortunately, some idiots think a law is constitutional if they like it.

Posted by: thomasmc1957 | December 13, 2010 6:00 PM | Report abuse

To just mention a few of the more than 2000 pages of HCR is stupid. We always hear the same few good aspects of HCR. If the Gov wanted to make insurance companies cover people with pre-existing conditions they should have done just that. Instead, we have a MONSTER HCR that IS unconstitutional and has more flaws than can be mentioned here. I will mention a few. Insurance rates have gone up a record amount since HCR passed. Corporations are disolving and reforming as smaller corporations in record numbers to avoid the new health care requirements. Many companies will opt to pay the fine rather than insure employees. States can and will cheat. To insure the 50 million people at 1 trillion dollars is $20,000.00ea just for start-up before interest.We have to borrow the money to fund it. It will go at least $28,000.00ea. Most experts believe that only 25 million more people will be covered. That will make it $56,000.00ea and most of these people are under 30 years old. The people who need insurance the least. This is smart? As usual, your article is simplistic at best.

Posted by: james1seattle | December 13, 2010 6:00 PM | Report abuse

EJ: Every judge I appoint," George W. Bush declared, "will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench."

Judge Hudson did just that. EJ and other liberals try to reverse the 'activist' charge of which they are on the losing end. Fortunately the majority of people realize ownership is not commerce..of course maybe EJ would like a conservative Washington D.C. to force ownership of firearms?

Posted by: rolltr | December 13, 2010 6:00 PM | Report abuse

You are already having to buy auto insurance lo these many years. Does that mean we are living under totalitarianism? If you want to drive you have to buy insurance. You call that a choice in say LA? Good luck living there without a car. Good luck living most places without a car. I think Bush's patriot act was/is far more dangerous than any law mandating you have to buy insurance. Didn't any of you read the article? He said that both sides legislate from the bench depending on where you stand on any given ruling. Love all of you using slurs, and name calling to make your point. It just shows your ignorance in matters of such importance.

Posted by: akcoins | December 13, 2010 6:02 PM | Report abuse

thomasmc1957 said "Of course it is unconstitution. Government has no right to force people to buy something from private companies. How about if they made a law that you had to buy a car? This is no different."

The government does mandate that you buy insurance for that car. And that you buy it from a private company.

This example isn't really legislating from the bench, though. The Roberts court creation of individual rights for corporations probably was, and saying that the regulation of a state militia was fungible with a right to have a gun in your house to protect yourself was really way out there legislating from the bench.

Posted by: adolphemenjou | December 13, 2010 6:03 PM | Report abuse

"Great! Does this mean I don't have to buy car insurance any more? I'm forced to have that now, so that must be unconstitutional as well. Posted by: getjiggly2 | December 13, 2010 5:49 PM"

=============

The republican rant for that is, nobody is forcing you to own a car.

Same stupid rant from the same REPUBLICAN TERRORISTS.

You will go to jail if you try to kill yourself. That means the government is forcing everyone to live. Hence, the government is obligated to provide medical care when needed.

Posted by: Dave27 | December 13, 2010 6:03 PM | Report abuse

I agree with Mr. Dionne. An interesting example of how ridiculous Judge Hudson's thinking is from his own state of Virginia. In Virginia, anyone who refuses to carry auto insurance has to pay the state $500 yearly. Why is this constitutional and the health insurance mandate not?

Posted by: amac3 | December 13, 2010 6:04 PM | Report abuse

'Can we please at least be honest that most of the "judicial activism" we now confront is coming from conservative judges undoing progressive laws?' ARE YOU KIDDING ME? Tell you what, go back and undo every "progessive" law which has been legislated from the bench (Can you say ROE V WADE?) and let's start over, sticking to a literal interpretation of the Constitution. Yes, the Constitution is a living document, but the Liberals throughout history have abused this to create a society which is causing the Founding Fathers to roll over in their graves!

Posted by: duncanthescott | December 13, 2010 6:05 PM | Report abuse

Since W was never legitimately elected president, I consider all of his Federalist Society judicial appointments to be illegitimate as well. This just supports my beliefs in this area.

Posted by: bizecology | December 13, 2010 6:05 PM | Report abuse

Deeming something unconstitutional is not legislating from the bench. It seems pretty much spot on with the role of the Judicial branch. What a sensationalist you are Mr. Dionne.

Posted by: Brad_The_Dad | December 13, 2010 6:06 PM | Report abuse

wheres the WAPO spew about the openly gay District Judge Vaughn Walker who over-turned Prop 8?...sure libtards can say well he's a republican...same arguement can be made that alot of democrats are happy obama's lame mandate is unconstitutional....if liberals spent half their time looking to better themselves and quit making excuses for their lowlife self-inflicted pity...then they might make a more reasonable minority.

Posted by: JWx2 | December 13, 2010 6:09 PM | Report abuse

State governments have "mandates" for car insurance. Why isn't any one complaining about that? And what about the mandate for mortgage insurance. I don't hear anyone whining about that either . . .

Posted by: anony | December 13, 2010 6:10 PM | Report abuse

Hey Dionne, you sir are an idiot. Clearly this Federal Judge understands something that you don't - the US Constitution.

Forcing citizens to buy a product, no matter what the intended consequences are, does not make it Constitutional...

Do yourself and the remaining few WAPO readers a favor - read the US Constitution once. You'll be surprised what you find...I'm sure.

Posted by: NO-bama | December 13, 2010 6:10 PM | Report abuse

This column is a perfect example of the tendency of important judicial decisions to make constitutional scholars out of people whose aggregate knowledge of constitutional law couldn't fill a thimble. Most notably, Dionne's comments on the political question doctrine would get laughed out of a first-year constitutional law classroom. Think about it: if every case that is decided on predictably partisan grounds were non-justiciable because it is a political question best reserved to the legislative branch, the Supreme Court would hear about three cases per year, if that. Dionne needs to think before he opens up MS Word next time.

And I believe there is a difference, at least to conservatives, between "legislating from the bench" - i.e. the creation by a court of positive law with no underlying statutory or common-law basis - and finding that a statute conflicts with the Constitution and must be struck down. The former creates rights that the legislature has not specifically passed (think Roe v. Wade and the right to an abortion, which appears nowhere in the Constitution or in the federal code); the latter strikes down laws that have been passed but that the court finds conflict with the Constitution (think Brown v. Board of Education) and has been the peculiar responsibility of the federal judiciary since Marbury v. Madison.

Whether Judge Hudson made the right call is anyone's guess, but man, at least get the concepts right if you're going to write a column about it. Better yet, stick to political commentary, Dionne, because this column is a little embarrassing.

Posted by: YoureAnIdiot | December 13, 2010 6:11 PM | Report abuse

Lots of trollers on here today. Dionne ended his piece with the key point which is that the only way to lower overall costs for all and and yet keep private companies in the insurance game is to have everyone join the pool. The bigger the pool, the lower the prices, the less risk for all parties involved to participate. Forget conservative vs. liberal. Its just basic market economics.
BTW my state makes be buy car insurance or I cant drive. I dont like it, but rates are lower because companies compete aggressively in my state. Maybe this is unconstitutional as well.

Posted by: dogfighter | December 13, 2010 6:12 PM | Report abuse

Ideologues. You just gotta love watching them shoot themselves in the foot.

I'm willing to bet that most who decry the mandate do now or eventually will have health insurance for themselves and their families. When they get their way and destroy the mandate, insurance rates will continue to increase so providers can recoup the cost of treating the uninsured. This will also deny the insurers a bargaining chip with which to force down hospital charges.

Or maybe insurance companies will simply pull out of *states* that don't mandate by law, eliminating competition and leaving either no insurance providers or a single provider who can charge whatever they want.

Posted by: bugbuster1 | December 13, 2010 6:13 PM | Report abuse

This whiny little jerk had no problem when federal judges were overturning Arizona 1070 or California Prop. 8, or trying to stop Dont Ask, Don't Tell. No the only problem he has is when a judge rules against his guy. What a silly hypocrite. Go away Dionne.

Posted by: wj03412000 | December 13, 2010 6:13 PM | Report abuse

Interesting that the Post's article about Judge Steeh's decision that upheld the health-care law made no mention that he was appointed by President Clinton. http://www.washingtonpost.com/wp-dyn/content/article/2010/10/07/AR2010100706497.html

If who appointed Judge Hudson is newsworthy today (and it is), then the appointing president should always be mentioned.

Posted by: news81 | December 13, 2010 6:14 PM | Report abuse

Ideologues. You just gotta love watching them shoot themselves in the foot. I just wish they didn't have the power to shoot the rest of us too.

I'm willing to bet that most who decry the mandate do now or eventually will have health insurance for themselves and their families. When they get their way and destroy the mandate, insurance rates will continue to increase so providers can recoup the cost of treating the uninsured. This will also deny the insurers a bargaining chip with which to force down hospital charges.

Or maybe insurance companies will simply pull out of *states* that don't mandate by law, eliminating competition and leaving either no insurance providers or a single provider who can charge whatever they want.

Posted by: bugbuster1 | December 13, 2010 6:14 PM | Report abuse

If there's one thing you can bet on, it's that the Supreme Ct. will vote 5-4 in favor of whatever is best for the corporations involved...ie...the insurance industry.

Posted by: gotoran | December 13, 2010 6:15 PM | Report abuse

Today ruling was not legislating from the bench. Judge Henry Hudson had a simple question to answer: Does the Constitution give the government the power to force citizen to buy insurance? A good example of legislating from the bench is depicted in Griswold versus Conn., 1958. In this case a new right not actually found in the Constitution was created from the bench, i.e. the right to privacy. With respect to auto insurance, dumb argument, if I don't own or drive a car, the government does not make me buy Auto insurance. Driving is a privilege and drivers must comply with minimum standards & rules to register and drive their vehicles.

Posted by: superba1 | December 13, 2010 6:15 PM | Report abuse

Writers like Dionne just discredit themselves by toeing the liberal line of what they consider legislating from the bench.

Keep writing your trash which just makes you look as out of touch as you really are.

Posted by: Cryos | December 13, 2010 6:18 PM | Report abuse

This totally turns things on its head. The legislating from the bench happened before this superb ruling in the creeping erosion on individual rights resulting from a judicial misinterpretation of the reach of the commerce clause.

This judge is absolutely right. If I choose to just sit here & do nothing there's nothing constitutionally permitted to compel me to buy a product. Otherwise they could compel me to buy a buick every year if it benefits the buick manufacturers.

Right on as regards the ruling. EJ can go back to dropping his acid & wearing his tie-dye shirts now. And by that I mean no disrespect to those who drop acid & wear tie-dye shirts (aside from EJ)

Posted by: aicohn | December 13, 2010 6:19 PM | Report abuse

How can it be legislating from the bench when the Judge says he cannot find a precedent and therefore has to declare the mandate to buy unconstitutional? Read the decision E.J.
As for the car insurance precedent,it is a state requirement not federal and one can buy insurance from any firm one wishes. As well, one can go without auto insurance without being taxed for not buying it. Big differences.

Posted by: gerryg43 | December 13, 2010 6:19 PM | Report abuse

Dion is a brain dead liberal. The fact is this judge is being very careful NOT to legislate from the bench. He is standing up for our constitution and the citizens of America. The constitution doesn't give the federal government the power to make us buy any product and in fact the federal government has usurped much of its power by wrongly stating what the constitution says in the commerce clause. It is time we take the country back from the political hacks that have over the years encroached on our daily lives and our freedom. As a strong supporter of the TEA Party, I am glad to see there is at least one honest judge left in the USA. Dion, on the other hand, is either ignorant, uninformed, or just a normal liberal wanting a socialist country.

Posted by: good_angel | December 13, 2010 6:20 PM | Report abuse

PS - For the morons who compare Odumbacare legislation to car insurance: You are not forced to own or drive a car. According to most state laws, a drivers license is a "privilege" that can be taken away or granted... AND it's regulated by the States. Currently, we don't have a Federal Drivers license.

Posted by: NO-bama | December 13, 2010 6:20 PM | Report abuse

I have an idea. Let's not allow the government to force anyone to do anything, drive on the right side of the road, stop at stop signs, bring guns to the court house, purchase building permits, dump toxic sludge, molest their own kids, buy a license to practice medicine, buy a law license, buy a license to sell insurance, buy an elevator license, buy a license to drive a truck full of nuclear waste, buy a voter id card so I can vote. Heck, let's just cast as many votes as we want, any day we want, for any law we want, or don't want; what am I saying? who needs laws when you can do anything you want anytime you want to. Anarchy could sure be fun...for a while.

Posted by: RoyFan | December 13, 2010 6:23 PM | Report abuse

E.J., please do some research and learn what "legislating from the bench" really is. Judge Hudson has not re-interpreted any of the language of the law, nor added to it. He simply struck down a portion of it that he concluded is unconstitutional, with the expectation that the US Supreme Court will have to rule on this. This is exactly what he should have done and exactly what the other judges FAILED to do.

Additionally, you really need to ask yourself whether or not the federal government should be allowed to FORCE you to buy anything, and whether or not the constitution provides that type of power. My opinion: regardless of how well-intended the reasons for mandatory health insurance were, this is not a power that is constitutionally provided to the legislative branch of our federal government, nor is it one we want to give.

Perhaps you are looking forward to a law that forces you to buy at least one new GM vehicle every five years?

Posted by: LovingDad95 | December 13, 2010 6:24 PM | Report abuse

Very interesting E.J. Dionne but you did take poly sci correct?

And if you did, can you please tell us what branches are needed to govern the USA? I think that the president and congress can pass a bill BUT if it does not pass the constitutional test ITS A NO GO!

The health care bill CLEARLY violates a very well defined and written clause in the constitution.

What you're trying to push as hypocrisy is a poor example of comparison. The examples of legislation from the bench is ignoring defined portions or inventing parts of the constitution that are not there that many liberal judges have done in the past.

Todays decision was very apt, and direct to what a federal judge must do - measure the will of the congress and president against the constitution as clearly defined. And guess what, as we already knew, it clearly goes against what the constitution says the federal government CANNOT do.

This is not legislating from the bench but from the constitution. Its about time!

Posted by: jabberwolff | December 13, 2010 6:24 PM | Report abuse

>State governments have "mandates" for car insurance. Why isn't any one complaining about that? <

Two issues here:

1) I can choose not to drive. I can't choose not to live. So the analogy is a very bad one.

2) States derive their rights in that regard from their police powers. The us constitution specifically reserves to the states all rights not specifically enumerated in the constitution. Mandating car insurance is one of them.

Posted by: aicohn | December 13, 2010 6:24 PM | Report abuse

Stay out of Jail in 2014! www.georgewashingtonhealth.com

Posted by: xstek99 | December 13, 2010 6:27 PM | Report abuse

I picked up the link to this article on Drudge not knowing it was from the W' Post. Now I understand. It's all about unconstitutional government control or Fascism.

Posted by: pashley1 | December 13, 2010 6:28 PM | Report abuse

Mr. Dionne, are you sure that the judge's point of view is invalid? Are you really a peer of the judge? Next we will be asking if you are a peer of the Supreme Court Justices (since you are going to disagree with them also)

Posted by: hmcwhort | December 13, 2010 6:31 PM | Report abuse

Wow - the right wing trolls are out in force here today. I wonder if the Drudge Report or some other idiot right wing source pointed their dittoheads over here to spout their remarkably uninformed rhetoric.

The federal, state and local government mandate services all the time. I thought right winders thought it was a GOOD thing if those services were provided by the private sector. Now they're complaining about the government requiring you for services provided by private healthcare providers and insurance companies? Sure are a confused bunch of nitwits!

Posted by: sambam | December 13, 2010 6:33 PM | Report abuse

Where in the Constitution does it require all employers buy health insurance for their employees? It's in the HCR.

I guess the commerce clause covers every aspect of our lives. Government power is absolute and limitless.

Posted by: kitchendragon50 | December 13, 2010 6:35 PM | Report abuse

Everyone uses healthcare services at one point or another, and a large portion of those who use it but who don't have insurance are those who also cannot afford to pay for the care they require.

With the GOP having a great track record of showing no love for the poor, why is it that they're arguing in favor of the poor by asking that they NOT pay for the insurance they should darn well be paying for? The rest of us are currently footing the bill for their lack thereof.

If someone is poor and can't afford to insure a vehicle, then don't drive a vehicle. But if someone is poor and can't afford medical insurance, let alone the medical expenses related to care they will inevitably require, who pays? Currently it's the rest of the people who do have medical insurance, in the form of higher premiums.

If a person has an ailment and neglects to see a doctor, eventually they may end up in the ER. If they neglected to see a doctor it's probably because they had no insurance -- why wouldn't they go if they had coverage? This means that ER patient never got lower-cost preventative or curative treatment prior to the emergency, and is now in the ER generating a huge bill that may never be recouped by the hospital.

Forcing these people to buy insurance is the only way short of universal healthcare (which is a similar concept but via taxes) to help get this under control. Those who don't like forcing people to pay for insurance are either those who are leeching the system by paying nothing and receiving ER care when needed, or GOP members who just want to ensure anything Obama did goes down in flames and care nothing for the American people.

Posted by: ThaLunatik | December 13, 2010 6:38 PM | Report abuse

Dionne is flatly wrong. For the judicial branch to declare legislation is unconstitutional, or otherwise challenge it, is not "legislating". And it is one of the wise reasons why judicial and legislative branches are separated entities.

Posted by: tony511 | December 13, 2010 6:46 PM | Report abuse

Well--there sure can be no doubt that the government can force you to buy old age insurance--does this mean the end of Social Security--why the Rich Republicans (who have insurance) want to be the providers for all the illegals, unemployed, and simple irresponsibles baffles me--but that is why the price of health care is about ten times the cost of health care-were everyone to as best they are able pay for themselves we could see an MRI costing about $150--that is what they are in Japan--it is lunacy for a significant portion of the population to be uninsured, and wholly paid for by those with insurance (or very deep pockets)--and they are the ones who insist that they want to keep right on doing it.

Posted by: Skerns0301 | December 13, 2010 6:48 PM | Report abuse

For all those decrying the auto insurance example - you don't have to drive yes, but EVERYONE has a body and needs medical attention at some point in their life. You cant escape it. If you or a loved one gets sick or injured and you don't have insurance or money to pay for care then chances are the rest of us end up paying for it. Why? because we are civilized and don't want to see people bleeding and dying in the streets, not to mention spreading diseases we thought we eradicated years ago.
Health care for emergency and critical care is really expensive and there is no way to cap it unless you can get everyone into a negotiated health care contract with some kind of cost ceiling. It doesn't work when only part of a society has healthcare.

Posted by: dogfighter | December 13, 2010 6:50 PM | Report abuse

Isn't it coincidental that the comments against Mr. Dionne's column are the most uncivil, rude and confontational? Tells you something about the character of the writers. We can disagree, but it CAN be done with some respect for the other side. Try for some decency to fellow readers.

Posted by: amac3 | December 13, 2010 6:54 PM | Report abuse

"there sure can be no doubt that the government can force you to buy old age insurance" --- Wrong.

All those years of taxes taken from your paycheck bought NOTHING. They were used to pay current beneficiaries.

Why do people insist that they are "paying into" social security? It is not an investment scheme, nor is it an insurance scheme. It is a Ponzi scheme. Check the fine print in the policy you bought.

Posted by: kitchendragon50 | December 13, 2010 7:22 PM | Report abuse

E.J. You're so predictable! If something doesn't fit your left wing opinion, it must be wrong. How pathetic!!!!

Posted by: Jimbo77 | December 13, 2010 7:31 PM | Report abuse

EJ how's the reality of post elections setting in? Oh I see, you are still thinking the constitution was written on toilet paper.
Kinda like the rights of "citizens" that can't mean US citizens it has to mean "world".
You are so far out of reality I don't think meds can help.
But it's ok, just don't go outside, just read the WP and only watch CNN.
Oh yes, when the supreme court says that the individual mandate is unconstitutional it won't matter, they aren't reading the same thing you are.
It will be alllll right.
Sure it will,

Posted by: Saladin3 | December 13, 2010 7:36 PM | Report abuse

Well, I see the trolls are out in full force tonight.

Posted by: bigfish2 | December 13, 2010 7:37 PM | Report abuse

I'm sorry, but words have meaning. I'm surprised that's lost on such an articulate writer as Mr. Dionne.

Specifically, "inactivity" is not synonymous with "activity." To assert otherwise is to debase language and defy rationality.

"Despite the laudable intentions of Congress in enacting a comprehensive and transformative healthcare regime, the legislative process must still operate within constitutional bounds. Salutatory goals and creative drafting have never been sufficient to offset an absence of enumerated powers."

Posted by: Polymathic | December 13, 2010 8:03 PM | Report abuse

Markster72 wrote: "To follow the Constitution does not equal legislating from the bench."
_________________

Tell that to your fascist Republican/TeaParty friends, who have played the "activist judge" card every single time they disagree with a judge's ruling.

Posted by: Manwolf | December 13, 2010 8:06 PM | Report abuse

"Activists Republican Judge"

Well we knew it was coming folks, here it is, as Republicans come after 32 Unisured American's from the bench, from the U.S. Senate, and now the U.S. Congress from fools who never learn, and never will.

This is what an activists Bush Appointed Judge does, now folks what do you think the Republican run U.S. Supreme Court will do, agree with him, and that must not be allowed to happen, as the fate of 32 Million unisured Americans hangs in the balance.

In conclusion, We knew this was coming and now we have a fight on our hands, for 32 Million American's who are depending on this Health Care Reform Bill and "WE/President/Democrats, and the "Great Washington Post "NOT GOING TO LET THEM DOWN!

..."BRING IT ON!

Posted by: ztcb41 | December 13, 2010 8:29 PM | Report abuse

I suppose this kind of forum encourages simplistic judgments on complex issues, but it is interesting to see some of the ridiculous analogies put forth in some posts here.

Posted by: daubry | December 13, 2010 8:32 PM | Report abuse

"There would be ways to preserve the health-care law's basic thrust if the U.S. Supreme Court ruled the mandate unconstitutional."

Yeah, it's called raising premiums. If the Supreme Court *doesn't* "legislate from the bench" and the ban on refusals for preexisting conditions outlives the mandate, you will soon see premiums skyrocket and the entire system will go straight into self-destruct mode.

Posted by: fzdybel | December 13, 2010 8:45 PM | Report abuse

fzdybel,

haven't you noticed that "the entire system" is NOT to be controlled/funded/required by the federal government, as the TENTH AMENDMENT prohibits this foolishness as an UNCONSTITUTIONAL exercise of federal power?

PLEASE show us where (if you can) the Constitution allows the federal goverment to do ANYTHING about insurance of any sort whatever. - such needs of citizens are an individual's/ state and/or local responsibility.

otoh, we won't have to worry too much longer about the feds sticking their noses into our affairs, as the TEA PARTY/GOP will essentially control Congress in about a month.

then in 2012, we TEA PARTIERS will dump BHO & a whole flock of other DIMocRAT/fascist/lunatic extremists out of Congress.

just my opinion.

yours, TN46
coordinator, CCTPP

Posted by: texasnative46 | December 14, 2010 11:08 AM | Report abuse

This WP article is a disservice to the facts. The fact is this judge struck at the over-reach of the commerce clause and that is blasted as "Legislating from the Bench?" The fact that you guessed that at least one of the judges in the path to the Supreme Court may rule against portions of this monstrosity means any individual rule against parts of it is obviously partisan rhetoric?

Hudson kept his ruling to the point, did nothing with inflammatory rhetoric (such as issue an injunction) and severed the aspects in question so as to preserve much of the aims of the law.

Moon, in the prior ruling, appears to have been the more broad supporter in essentially agreeing with the administrations line that "since sooner or later we need Health care, the mandate is just regulating what we must pay anyway" and implying that the good of this bill justifies the mandate. That does not properly speak to whether the commerce clause can be used this way to produce such a binding mandate.

Though this article is opinion, I suggest we stick more with the facts for the moment than step into *this* partisan rhetoric.

Posted by: billdeweese | December 14, 2010 4:43 PM | Report abuse

"PLEASE show us where (if you can) the Constitution allows the federal goverment to do ANYTHING about insurance of any sort whatever."

Ha ha, cobber, you got me confused with someone who cares what happens to the health insurance companies. I'm telling you that when these guys lobbied the Congress into this outrageous mandate they may have slit their own throats.

Posted by: fzdybel | December 15, 2010 2:21 AM | Report abuse

fzdybel,

would you care to try to actually answer the question i posed?
OR
1.could it be that you did NOT understand what i asked you (was third grade your best five years of "gubmint apruvd publick screwl"?),
2. you don't have enough knowledge/"gray matter" to answer the question
and/or
3. you know that your position is Constitutionally WRONG, terminally SILLY, FOOLISH and devoid of FACTS & therefore choose to avoid facing the truth?

laughing AT you!

yours, TN46
coordinator, CCTPP

Posted by: texasnative46 | December 15, 2010 10:42 AM | Report abuse

Who cares what a cracker judge from a Red State appointed by the dunce known as President Bush says or does. If ever there was a team that had no clue about our constitution and our citizens rights it was the clowns that surrounded Dubya. Want to torture sure just hire a lacky attorney who will write that it is legal and go right ahead destroying our moral compass and reputation in the world. We are a lesser country since the days that Dubya and his puppet master Cheney stole the first election. they believe that fear mongering our nation is the way to win the votes of the lesser educated and tried mightily to keep our nation a bunch of sheep. Be afraid be very afraid of muslims, homosexual servicemen and women, mosques, immigrants etc. etc. etc. I fought for America in the Vietnam war and my son is serving in Iraq as a member of the All American 82nd Airborne but we were from a country that was the home of the brave not the home of the selfish and scared. Health Care will be one of President Obamas greatest legacies hundreds of years from now and all those lives saved by the elimination of the pre existing condition b.s. and the preventative care will not be in vain. It will take that long to make up for the lives wasted by the Repugnicans in their off budget war for WMD lies.Thank you President Obama when the real effects are felt in 2014 the vast majority of Americans will realize that it is a step in the right direction and that we are way behind most of the industrialized world in health care basics. Facts and VERITAS never the subjects in the FAUS news folks mouths. OBAMANOS! Besides plenty of fair jurists who are not personally tainted by being political have already affirmed this law of the land.

Posted by: jbento | December 15, 2010 10:19 PM | Report abuse

jbento,

tell us truly: do you ENJOY being thought a clueLESS nitwit & being RIDICULED as a dunce, first class?

"obamacare" will be STRUCK DOWN by the SCOTUS, when it is heard there.


laughing AT you & every other fascist DIMocRAT, whom cannot figure out that simple fact.

yours, TN46
coordinator, CCTPP

Posted by: texasnative46 | December 17, 2010 10:57 AM | Report abuse

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