Almost from the moment of its passage last March, the Obama administration’s signature health care law has been under attack.
More than 20 lawsuits have been filed challenging the law. The administration won the first two, in eastern Michigan and western Virginia. But in the eastern district of Virginia, the state’s conservative attorney general got the case before a notably conservative federal judge and the opponents finally got the ruling they wanted.
U.S. District Judge Henry Hudson ruled as unconstitutional a key, even vital, provision of the bill: the requirement that individuals must buy health insurance or pay a penalty. That mandate, he ruled, “exceeds the constitutional boundaries of congressional power.”
It will be interesting to see how the higher courts deal with his key findings. The dispute, Hudson said, is not about how best to craft universal health coverage, “it’s about an individual’s right to choose to participate.” The history of when and how individuals can opt out of government mandates, usually on religious grounds, is long and complicated and heavily weighted in favor of the government.
Hudson also said the insurance mandate, if allowed to stand, “would invite the unbridled exercise of federal police powers.” That seems a little overwrought, although given the government’s growing fixation on health — fatty foods, alcohol, tobacco, exercise — perhaps not.
By spreading the insurance risk as broadly as possible, the individual mandate makes possible two of the law’s most popular provisions: a ban on insurers denying coverage for pre-existing conditions and a requirement that insurers charge roughly similar prices for coverage.
Hudson thoughtfully did not enjoin the government from implementing the mandate, but did say he expected the Justice Department to honor his decision. He also helpfully declared that the mandate could be “severed” from the rest of the Affordable Care Act, meaning that the whole law would not be found unconstitutional if only one part of it was found to be so.
Virginia would like its case to be the one deciding the fate of health care reform. Three ambitious conservative Virginia politicians — Attorney General Ken Cuccinelli, Gov. Bob McDonnell and incoming House Majority Leader Eric Cantor — are trying to persuade governors and governors-elect to pressure U.S. Attorney General Eric Holder to fast track the case, bypassing the appeals process to go directly to the Supreme Court.
Perhaps adding to their sense of urgency, a much larger case — to which 20 states are party — is under way in a Florida federal court with a decision expected early next year.
Also, opponents of the law might sense that the Obama administration is right and that once the public becomes aware of the law’s benefits, support for retaining it may begin to build.
But given the political sensitivity of the health care law and the gravity of the issues, the appeals process should be meticulously followed. The law should not be rushed through the courts, or even appear to be rushed. There is no hurry. The individual mandate does not take effect until 2014.
Dale McFeatters is a columnist with Scripps Howard News Service.