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Posted at 12:21 PM ET, 12/13/2010

Challenge to ObamaCare's individual mandate survives first test

By Jennifer Rubin

Yup, a district court judge in Virginia has ruled against a motion to for summary judgment seeking to dismiss the state attorney general's lawsuit claiming the individual mandate in President Obama's health-care law is unconstitutional. In legal terms this means that on the facts and law there is a viable basis for striking down the heart of the president's "historic" legislation. This is the beginning of a long road that will no doubt take us to the Supreme Court. But for now, Virginia Attorney General Ken Cuccinelli is the conservative man of the hour. Mitt Romney is keeping his fingers crossed (if the law is struck down, perhaps his authorship of a similar state measure becomes a less toxic issue for him). And Republicans have further reason to celebrate a very eventful couple of weeks.

UPDATE(1:07pm): Rep. Eric Cantor has issued a press release calling for an expedited review by the Supreme Court. It reads in part:

"Today's ruling is a clear affirmation that President Obama's health care law is unconstitutional. The efforts of Governor McDonnell and Attorney General Cuccinelli have raised legitimate concerns and ensured that the people of the Commonwealth will have their rights protected against this unconstitutional law. Ultimately, we must ensure that no American will be forced by the federal government to purchase health insurance they may not need, want, or be able to afford.

"To ensure an expedited process moving forward, I call on President Obama and Attorney General Holder to join Attorney General Cuccinelli in requesting that this case be sent directly to the U.S. Supreme Court. In this challenging environment, we must not burden our states, employers, and families with the costs and uncertainty created by this unconstitutional law, and we must take all steps to resolve this issue immediately.

Who'd have thought the vote on the bipartisan tax agreement would be the second most important story of the day?

By Jennifer Rubin  | December 13, 2010; 12:21 PM ET
Categories:  President Obama  
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Comments

Obviously, there is a long way to go in this fight, but I have always thought it was a serious mistake for this administration to push as far left as possible and have no GOP support on such a deeply personal law. Ok, lefties, you can argue if you wish that the GOP would've said no, no matter what. But if the president wanted this law to last, it NEEDED broad support. He crammed this thing through because lefties dreamed about it for a century and they had a 1 in 4 generation shot to do it. And they did it. And I think the result is his 'great accomplishment' is going to be slowly torn to pieces over the next several years.

Posted by: jmpickett | December 13, 2010 1:07 PM | Report abuse

On the other hand, the so-called public option would not violate the commerce clause.

Posted by: riskpref | December 13, 2010 1:19 PM | Report abuse

Eric Cantor must be taking Glenn Beck lessons:

"Today's ruling is a clear affirmation that President Obama's health care law is unconstitutional."

Of course the court said no such thing. Cases like this would almost never be dismissed on a motion for summary judgement. It's just a procedural thing like the defesne making a motion to acquit after the presentation of the prosecution's case.


"Ultimately, we must ensure that no American will be forced by the federal government to purchase health insurance they may not need, want, or be able to afford."

Eric, I'm good with that as long as we don't have to pay for their health care anywhere else either if they get sick. If you have the big ones to cut off funding for Medicare and Medicaid too, then I want a ticket to THAT speech!


Posted by: 54465446 | December 13, 2010 2:04 PM | Report abuse

All of us who have health insurance pay for the treatment of those who don't in the most expensive way - in the ER. And thank God there is some treatment for those who could be contagious (see Haiti, cholera epidemic) from not becoming a public health debacle.
I live in Virginia and this could be the last straw for me. I will take my tax money elsewhere - to any other state where state revenue is not wasted on personal vendattas like those waged by leaders like Ken Cuccinelli and Bob McDonnell. From the Governor's Civil War announcement that cleverly left off any mention of slavery to the Attorney General's ridiculous claim against one time UVA Professor Michael Mann, these Republican state leaders have used their offices to turn back the clock and insert their own agenda. It's an embarrassment for anyone interested in good governance. This is what happens when democrats don't come out and vote!

Posted by: mrheinstein1 | December 13, 2010 2:20 PM | Report abuse

mrheinstein1 wrote: This is what happens when democrats don't come out and vote!
----------
My county lost 33,000 registered Democrats off the voter registration role from 2008 to 2010 election. At a time that the voter numbers continued up so it's not a population loss. There may not be that many Democrats left at the next election. You may be an endangered species thanks to Obama and your party's pandering.

Posted by: Desertdiva1 | December 13, 2010 2:54 PM | Report abuse

EVERYTHING about the current white house Manchurian candidate is unconstitutional, illegal, immoral, unsustainable, UNAMERICAN.

Posted by: craigslsst | December 13, 2010 2:57 PM | Report abuse

I just increased my health coverage and I am fortunate to have a job that provides group coverage. Having said that, I am amazed at the number of my co-workers who declined coverage when it starts at aruond $20.00 a week. Compare that with what you pay to insure your vehicle. What's in our priorities?

Posted by: ward7 | December 13, 2010 2:57 PM | Report abuse

ward:

That's because the law says you HAVE to have insurance to drive. OOPS I said that too loud. There's a new court case coming up!

Posted by: 54465446 | December 13, 2010 3:36 PM | Report abuse

@Posted by: 54465446 | December 13, 2010 3:36 PM:"That's because the law says you HAVE to have insurance to drive."
_______________________

You HAVE to have LIABILITY insurance to drive to provide protection for those whom you may harm in an accident.

Can you discern the difference between liability insurance and personal healthcare insurance?

Posted by: HenriLeGrand | December 13, 2010 3:55 PM | Report abuse

What did we expect? It's Virginia for crying out loud. Their idea of 'constitutional' is something one drinks just before bed.

Even the sadly inept SCOTUS must 'refudiate' (to use a recent Palinism) this layman's twist of the commerce clause, and I think Cuccinelli knows this -- but he'll make a few bucks doing the Fox "News" talk circuit and further grease the skids for any political office he might have his eye on.

What a show! Beats the heck out of any recent Zombie flick (you know -- where the brainless undead attack anything alive and warm-blooded)!

Posted by: Frank57 | December 13, 2010 6:26 PM | Report abuse

@HenriLegrand:
So you HAVE to have HEALTH insurance to provide protection for society, which you harm by getting sick while uninsured.

Also, it seems like you're arguing that auto insurance vs. health insurance is only a difference of degree and not kind.

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

Can you discern the difference between liability insurance and personal healthcare insurance?

===
Yes. One covers direct individual liability, the other covers indirect collective liability.

Let's take your example of a car crash in which both parties are injured. The at-fault party has caused direct bodily, and therefore financial, harm to the other party, as well as to himself. Let us assume the at-fault party carries only the state-mandated minimum liability coverage, has no assets, nor does he have any health insurance.

The at-fault party has caused both direct and indirect damage to the other party. The direct damage will be paid by his liability insurance. This pays for the medical treatment of the non-at-fault party.

The indirect damage hits the other party the next time he pays taxes, because the at-fault party was taken to the hospital where he received treatment for his injuries. The at-fault was unable to pay the bill, so the hospital accounted for it as uncompensated care, and charged it back in one fashion or another to the local municipality, county, or state. They also charge the insurance company an inflated rate to offset UC.

Posted by: mason08 | December 13, 2010 6:40 PM | Report abuse

Americans like options ... they abhor mandates ... Barry is better off getting this to the Supremes as soon as is feasible because the House will use this as a basis for defunding all of the regulatory bodies starting about January 1st ... keep an eye on the moderate Dem senators up in 2012 ... if they don't come out in vigorous defense of ACA on this it will not be repealed but will die a budgetary death by Congressional strangulation ...

Posted by: cunn9305 | December 13, 2010 7:06 PM | Report abuse

This ruling once again reveals the achilles heel in the minds of the politically conservative - that fanciful notion that we all act independently of one another. Let's remember that this is one judge, and two others have already given it a thumbs up. Me thinks Cantor the clown and his buddies are getting a little ahead of themselves. In the end th is will pass muster with Wm. Kennedy, who, ultimately, will decide this thing. In the meantime, note that all other provisions remain intact. This isn't going away, folks, and wishing it so won't make it happen.

Posted by: pablomango | December 13, 2010 7:56 PM | Report abuse

Am I the only person who noticed that there isn't a single legal argument in this article? It's just a general call to arms to the GOP's faithful.

The truth of the matter is that this piece of legislation passed by the Congress IS constitutional and does survive the Centuries worth of precedent. This Supreme Court has stated that the Commerce Clause allows Congress to regulate
(1) the “channels of interstate commerce:”
(2) the “instrumentalities of interstate commerce, and persons or things in interstate commerce;” and (3) “activities that substantially affect‟ interstate commerce.” If you read some of the cases concerning the Commerce clause, it becomes evident that the Congress is well within its constitutional bounds to require an individual mandate.

It's not that you people are delusional. It's that you're uneducated.

Posted by: jargoun | December 13, 2010 7:57 PM | Report abuse

None of this is new. The same crowd claimed Social Security and Medicare were socilism and unconstitutional. The same crowd claimed that the federal reserve was unconstitutional. In the 19th century the same people tried to claim that you couldn't have paper money because the Constitution said "coin." Same party of NO! same obstructionists, opposing progress for the last couple of centuries.

Posted by: lemondog | December 13, 2010 8:38 PM | Report abuse

This ruling once again reveals the achilles heel in the minds of the politically conservative - that fanciful notion that we all act independently of one another.

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

No, the ruling attempts to answer a fundamental question- Does the "public good" allow the federal government to force me to purchase a commercial product for simply being alive?

If the answer is yes, what else can the feds force me to do- Will Michelle Obama force me to eat brussel sprouts?

Sounds silly, but in all seriousness a mandate can turn into anything.

Posted by: bbface21 | December 13, 2010 8:48 PM | Report abuse

@jargoun | December 13, 2010 7:57 PM: "The truth of the matter is that this piece of legislation passed by the Congress IS constitutional ... It's not that you people are delusional. It's that you're uneducated."
______________

Some of us are educated enough to know it takes more than jargoun's assertion to rule any legislation is constitutional. I am content to have the Supreme Court decide.

To clarify my earlier comment, liability insurance is mandated in many (if not all) states for the privilege of driving a car. You are not required to carry such insurance if you do not wish to register a car for the purpose of driving it. And if someone chooses to bring a law suit against such a state mandate, my guess is it will be laughed out of court.

But feel free to do it anyway. Last time I checked, it was still a free country, albeit a very litigious one.

Posted by: HenriLeGrand | December 13, 2010 8:53 PM | Report abuse

henrilegrand wrote:


"Can you discern the difference between liability insurance and personal healthcare insurance?"

Yes, if you don't have health insurance, the rest of us will be paying the cost of your hospitalization!

Posted by: 54465446 | December 13, 2010 9:05 PM | Report abuse

Way to go Virginia voters. Taliban Bob and Coathanger Cuccinelli will spend all of our tax money to push their radical agenda. I live in Virginia and I pay for my own health care. If this lawsuit succeeds, I will drop my health insurance and mooch off the system like so many others. You will end up paying the tab. Its my right as an American. Right?


Posted by: wiz_fan | December 13, 2010 9:27 PM | Report abuse

On the other hand, the so-called public option would not violate the commerce clause.

Posted by: riskpref
----------------------
I agree. I think that many people are unable to distinguish the issue of whether a judgment is good or not from the other issue of WHO has the right to make it. I will explain.

Suppose you plant roses in some part of your garden which does not get enough sun and so they are languishing. Your neighbour sees this and realizes that some other flowers would be better.

So he comes in the middle of the night, pulls out the roses and plants azaleas.

He may be right. Roses do need more sun. But, it is YOUR garden and he did not have the right to do what he did.

And people who say here, "But the roses were not doing well" do not understand the issue in question. It wasn't a question of whether roses are good or azaleas, but WHOSE garden it is.

In the same way, maybe we need better health system. In fact why "maybe"? We have a badly managed health system and we DO need a better one.

But Obama and Pelosi did not have the right to use the commerce clause in order to force people to buy health insurance which (they believe) they do not need.

A public option? Absolutely. The Republicans may oppose it, but they would have no legal standing in that case.

But what was actually done by Obama and Pelosi was unconstitutional.

Posted by: rjpal | December 13, 2010 9:31 PM | Report abuse

Sorry, but if I hear one more Republican say, it is unconstitutional and I don't want to pay for someone els health care, good then don't pay your auto, home owners, taxes, medicare, or anything. Because it is a pool, you idiot.

I don't live in N. Y., but my federal gas tax build highways there. There federal gas tax builds highways in my state.

This is the opinion of one federal judge with a sad legacy. This man has $100,000 stock ownership in a company that opposed Obama care ,and contributed to the GOP to defeat Obama care.

This would like letting Mitch "the Mooch" McConnell decide the outcome of the 2000 Presidential election.

The sad losers, will be all Americans making less than $300,000 a year. Between the increase in gasoline cost and your health care cost, you will slide into the ash can of history.

Most of you who oppose Obama care, come back in 2012, when you have no job, no income and no health care. Then let's talk.

Eric Cantor is a hideous liar and an idiot.

Posted by: COWENS99 | December 13, 2010 9:56 PM | Report abuse

Eric Cantor is walking talking proof that the GOP is immersed in whacko idiots.

Beck said that there were 187 million muslim terrorist , and Cantor believed him.

Great Country America, was before these idiots got in powered.

Posted by: COWENS99 | December 13, 2010 9:59 PM | Report abuse

Social Security and Medicare had broad bipartisan support both in Congress and with the populace. Both created well defined constituencies that paid their taxes as a defacto government sponsored savings plan to be used for medical care and support income in later life. ObammyCare was a radioactive moldy stew of horsetrading by all the major players, except physicians of course who had to remain "neutral" regardless of misgivings. This new law creates no new constituent aside from the permanent underclass which currently pays no taxes and shows no interest in preventative care or in those who provide it. All of this will be paid for by gutting Medicare, taxing middle class insurance plans and charging a surtax on a majority of the medical industry. Oh and it will add an extra 3 to 5 % surtax to "high earners". These extra taxes will, of course, be passed on to the good ol' comsumer in true capitalist fashion in reaction to unintended utopian governmental policy. Basically there is something in this law for everybody to hate unless you don't plan to work for a living, don't pay any taxes anyway or love hanging out with Mom and Dad until you're 26 after which the governments mandates ( and rightly so ) that they kick you outta the house. In the end a bill that only a mother could love ... or a mother lovin' Democrat.

Posted by: cunn9305 | December 13, 2010 10:50 PM | Report abuse

Actually, businesses should be gripped with fear at the precedence this ruling could set. Health insurance is a widely accepted mechanism for individuals to pay their healthcare providers. For the vast majority of us it is the only way to reasonably expect we could ever pay for more than the most routine care for minor decease processes.
It has long been held that individuals who engage businesses are obliged to pay or make arrangements at or before the time of service or sale. State, Federal, and local laws routinely backup this obligation. If this ruling is upheld, then it would be the first time a court has systematically invalidated a legal provision that individuals make adequate previsions to pay for the services of a class of service providers.
If this precedence is upheld, the courts could use it to invalidate the requirement to make arrangements for payment. Perhaps the businesses who are opposed to the insurance requirement would be willing to allow irresponsible individuals to take their services whenever they felt the need. Using this logic, I should be able to fill my gas tank for free whenever I get low on gas. Since I like nice cars, I should be able to drive one away from any dealer’s lot, without paying for it or taking out a loan. And why should the government back up a home owner whose neighbor decides he likes his house and decides to move in?

Posted by: DrS1 | December 13, 2010 11:17 PM | Report abuse

To clarify my earlier comment, liability insurance is mandated in many (if not all) states for the privilege of driving a car. You are not required to carry such insurance if you do not wish to register a car for the purpose of driving it. And if someone chooses to bring a law suit against such a state mandate, my guess is it will be laughed out of court.
===

Uncompensated care damages the taxpayer because they are unable to pay debts for which they are liable. Uncompensated care is 55% of ER expenses these days, according to CMS. When can I sue to repeal EMTALA?

Posted by: mason08 | December 13, 2010 11:43 PM | Report abuse

Gah... that was bad... Apologies.

Cleaned up:

Uncompensated care damages the taxpayer because they are forced to pay the debts of those that receive the UC. Uncompensated care is 55% of ER expenses these days, according to CMS. When can I sue to repeal EMTALA?

Posted by: mason08 | December 13, 2010 11:46 PM | Report abuse

ward:
That's because the law says you HAVE to have insurance to drive. OOPS I said that too loud. There's a new court case coming up!

Posted by: 54465446 | December 13, 2010 3:36 PM
-----------------------------------------------

You "don't" have to have insurance, to drive. You must show proof of Financial Responsibility, in order to drive. If you can provide proof to your Dept of Motor Vehicles, that you're responsible, and can pay for "any" anticipated expenses, incurred in "any" anticipated automobile accident, I'm sure that they'll allow you to drive, by signing a Surety Bond, to cover any loss or damage, that you might cause, to the person, or property, of another person.
Dennis

Posted by: Shadowsmgc | December 14, 2010 1:14 AM | Report abuse

Am I the only person who noticed that there isn't a single legal argument in this article? It's just a general call to arms to the GOP's faithful.
The truth of the matter is that this piece of legislation passed by the Congress IS constitutional and does survive the Centuries worth of precedent. This Supreme Court has stated that the Commerce Clause allows Congress to regulate
(1) the “channels of interstate commerce:”
(2) the “instrumentalities of interstate commerce, and persons or things in interstate commerce;” and (3) “activities that substantially affect‟ interstate commerce.” If you read some of the cases concerning the Commerce clause, it becomes evident that the Congress is well within its constitutional bounds to require an individual mandate.

It's not that you people are delusional. It's that you're uneducated.

Posted by: jargoun | December 13, 2010 7:57 PM
-----------------------------------------------
O'bama's "educated" but, he's "not" wise, or smart. He had to use Bill Clinton, in a faint attempt, to gravitate, toward the Center. Bill Clinton's the same guy, who suggested that O'bama, just a few years ago, would've been utilized as a Coffe Runner, for the Real Candidates.
Highly educated, Not smart.
Dennis

Posted by: Shadowsmgc | December 14, 2010 1:26 AM | Report abuse

Mortgage refinancing means re-funding the mortgage loan with better terms as well as conditions, most likely from a different lender. It is one way to save money. Search online for "123 Mortgage Refinance" they found me 3.1% refinance rate and also gave free analysis of my mortgage.

Posted by: lindahursey | December 14, 2010 5:44 AM | Report abuse

Posted by: craigslsst and HenriLeGrand,

My answer to your question "Can you discern the difference between liability insurance and personal healthcare insurance?"

As far as I can tell, there is no difference in the purpose of both. Liability insurance ensures that you have some way of paying for repairs on the car you slammed yours into. Personal healthcare insurance ensures you can get your body fixed after being in the car accident without everyone else having to pay for it.

Although I don't like the idea of forcing people to be responsible, I understand the reasons for both.

Posted by: fmamstyle | December 14, 2010 7:07 AM | Report abuse

A lot of wishful thinking from the left wing, free lunch crowd!!!! Pathetic!

Posted by: Jimbo77 | December 14, 2010 8:33 AM | Report abuse

mrheinstein1,

Bye!
When we voted in Mr. Cuccinelli, it was for him to represent the majority of his constituents.
He is doing his job.

Posted by: tjmlrc | December 14, 2010 9:17 AM | Report abuse

Sorry, but if I hear one more Republican say, it is unconstitutional and I don't want to pay for someone els health care, good then don't pay your auto, home owners, taxes, medicare, or anything. Because it is a pool, you idiot.

I don't live in N. Y., but my federal gas tax build highways there. There federal gas tax builds highways in my state.
Posted by: COWENS99
======================================
Testy are we? You can choose to not drive. there are a number of ways to move about without driving a car. Car insurance and home owners insurance are not required in the Commonwealth of Virginia. You can opt out of car insurance by paying the "Unisured Motorist Fee" of $250. If you own your home outright, you are not REQUIRED to buy homeowners insurance. Now the mortgage holder on your home or your finance company with your car can make insurance a condition of lending you money, but you have A CHOICE!

What this ruling says is that the federal government does not have the right to force you to purchase insurance. On a state level, the ruling might be different, but that's not what we're talking about here. Maybe it would help if you actually tried to present a case without resorting to name calling. Grow up and debate the facts.

Posted by: thensell | December 14, 2010 9:25 AM | Report abuse

Uncompensated care damages the taxpayer because they are forced to pay the debts of those that receive the UC. Uncompensated care is 55% of ER expenses these days, according to CMS. When can I sue to repeal EMTALA?

Posted by: mason08

Any idea of what the percentage of that is through people who are here illegally?

Posted by: thensell | December 14, 2010 9:30 AM | Report abuse

What the lefty's don't understand, because they are too stupid, is that driving is a PRIVILEDGE NOT A RIGHT. The fact that the mandate required anyone who is alive to carry health insurance is NOT the same as requiring anyone who drives to carry auto insurance. Noone is required to carry insurance to publish a website/newspaper/practice religion, etc., all RIGHTS protected by the 1st Amendment. I would like the Lefty's to point out which amendment guarantees the right to drive? Anyone? Buehler?

I do agree with the lefty's that a public option WOULD be constitutional. To throw that red herring out there is just more lefty double speak.

Posted by: ATrueChristian | December 14, 2010 11:56 AM | Report abuse

Thanks to Attorney General Ken Cuccinelli for fighting for our right to be turned down for insurance coverage and/or bankrupted by overwhelming medical bills. As he said with such honesty and no hypocrisy, this case isn't about health care, it's about liberty. We can't let the big bad gubment take away our right to die from treatable medical conditions when that treatment is not profitable for corporations. He shore makes me proud to be a Verginyan.

Posted by: tomguy1 | December 14, 2010 12:06 PM | Report abuse

"... It wasn't a question of whether roses are good or azaleas, but WHOSE garden it is...."

Posted by: rjpal | December 13, 2010 9:31 PM
*************************

Excellent evidence for why parables work extremely effectively in the spiritual realm; but are useless in the practical and political.

This ain't no bed of roses, rjpal.

Posted by: abqcleve | December 14, 2010 12:06 PM | Report abuse

To say that it's unconstitutional is sometimes just dependent on the current government or the justice's deliberation. To others, they believe that it is constitutional because it still falls under the commerce clause because it affects commerce activity. The health care reform's provisions will help a lot of Americans. If the supreme court will rule that it's unconstitutional the government should create a system that can improve our health care system that is constitutional.

Anne C
NY Health Insurer

Posted by: Anne_NYHI | December 14, 2010 12:31 PM | Report abuse

When someone with no insurance gets shot and they go to the hospital do you watch them die or do whatever it takes to keep them alive about $14,600 and additional 20,000 follow up costs?

Posted by: ASKENNEDY | December 14, 2010 12:42 PM | Report abuse

Let's see if this comment gets posted. With the eververscent Eric Cantor now pushing for the matter to be heard before the highest court with less integrity, I'm wondering how they will rule. If the demand for all to participate is unconstitutional then all consumers have a right to opt out of auto insurance and mortgage companies need not demand homeowner's insurance.

Posted by: ewjazzed | December 14, 2010 1:38 PM | Report abuse

The fact that the DOJ is now trying to get the Virgina ruling overturned shows how out of touch this administration is with the American people. WE DON'T WANT THIS! THE ONLY PEOPLE WHO WANT IT ARE THE PEOPLE WHO WANT US WORKERS TO PAY FOR IT!!! This is going to be stopped one way or the other. Holder will get tired of being called to testify before the House on a daily basis!

Posted by: georges2 | December 14, 2010 2:09 PM | Report abuse

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