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Federal Judge Rules Individual Mandate of Obamacare Unconstitutional

This isn't a surprise--it was inevitable that one judge would find the Obamacare law to be unconstitutional. But today Federal Judge Henry Hudson became the judge to do just that.

A federal district judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first court in the country to invalidate any part of the sprawling act and insuring that appellate courts will receive contradictory opinions from below.


In a 42-page opinion issued in Richmond, Va., Judge Hudson wrote that the law's central requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution. The insurance mandate is central to the law's mission of covering more than 30 million uninsured because insurers argue that only by requiring healthy people to have policies can they afford to treat those with expensive chronic conditions.

The judge wrote that his survey of case law "yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchase a product, not withstanding its effect on interstate commerce or role in a global regulatory scheme."

Supreme Court challenges to Obamacare are likely from several different angles. Now that there are contradictory opinions from lower level federal courts, a path to higher level courts is pretty clear.


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Comments (48)

Well, this probably elimina... (Below threshold)
Tsar Nicholas II:

Well, this probably eliminates any chance of Judge Hudson being on the invite list to Obama's Kwanzaa celebration.

On a serious note, Hudson was nominated by George W. Bush, whereas the two judges who went in the other direction both were nominated by Clinton; so the dueling rulings are not at all surprising, except perhaps to those who have rocks in their heads.

Ultimately the Surpreme Court will have the final say, and in that regard we all better hope that Kennedy doesn't screw things up and, even moreso, that Obama doesn't receive any further vacancies between now and then.

The Obama people are scramb... (Below threshold)

The Obama people are scrambling to put a good spin on this defeat. Right now they are saying that the decision in no way effects the rest of the law. As I read it and others that have more knowledge of the law, there is no severability written in any of the clause. So, in other words, this ruling has made the whole package unconstitutional. The part that the judge ruled against is the guts of the law and without it, the whole thing comes crashing down around Barry's jug ears.

No way to the Chicago way..... (Below threshold)

No way to the Chicago way..

I have never liked coercive... (Below threshold)
Steve Crickmore:

I have never liked coercive individual mandates since Hillary tried to beat Obama over the head with it in the presidential campaign. He was adamantly opposed to it it before he was for it. Giving in, so easily as his is wont, Obama as a constitutional professor/ lecturer should have known better, that the US Constitutution, particularly the Bill Of Rights is the most important thing in the USA. Hillary and Obama must have missed that class at law school. I never understood how you can force everyone to take out expensive health insurance if they are perfectly healthy or don't want it. Before conservatives gloat too much, DADT is clearly just as unconstitutional as well.

It doesn't matter if 10 Fed... (Below threshold)

It doesn't matter if 10 Federal Judges rule it constitutional, once one Federal judge says its unconstitutional then IT IS UNCONSTITUTIONAL until the Supremes rule on it ...

The Mandate is dead for now ... plus some other parts that depend on the Mandate ...

My concern is that the admi... (Below threshold)

My concern is that the administration response will be to go along - just increase taxes and make it "free"

The moons must be aligned a... (Below threshold)

The moons must be aligned a certain way. I agree with most of Steve Crickmore's analysis. However, the DADT policy has to line up with the UCMJ more then the constitution. When I signed up years ago, it was made very clear that I am now under the UCMJ. ww

Congress has had it's say ... (Below threshold)

Congress has had it's say on the health care bill. We will have to wait to see what the judicial arm will do. That may take years.

Something to think about. C... (Below threshold)
Tina S:

Something to think about. Could the ruling apply to car insurance also? If so, what affect do you think it would have on the price of car insurance?

As Tina states. Car insuran... (Below threshold)

As Tina states. Car insurance and also the seat belt law are both money making scams for big gov.

The way I understand car in... (Below threshold)

The way I understand car insurance the mandate is for liability coverage(collision is required by your lender not the government.) In other words you are required to have insurance to pay damage you might to do another individual or their property, that's quite a bit different than the health insurance mandate.

Steve..Steve..Steve,<... (Below threshold)


You were doing so fabulously well until your liberal instinct just had to throw something in there like a turd in a punch bowl.

That was pretty good though and I was with ya til. . .you know.

John @ #11Auto ins... (Below threshold)
Brian The Adequate:

John @ #11

Auto insurance is a government requirement, but you are correct in that the only required coverage in most, if not all states is public liability / public damage. So if you damage someone else, they are made whole.

Tina [email protected] #9
No it can not, because no one is required by law to own a car. You can easily evade the requirement to buy insurance by not owning a car.

The judge found a presumpti... (Below threshold)
Brian The Adequate:

The judge found a presumption of severability, so this ruling only kills the individual mandate not the entire law.


Yippie Kyyaa Maa Faaa... (Below threshold)
Pretzel Logic:

Yippie Kyyaa Maa Faaa

Actually I'm pretty sure yo... (Below threshold)

Actually I'm pretty sure you can even own a car you just can't put a license plate on it and drive it. That's always been the flaw in the reasoning that health insurance mandates and car insurance mandates are the same. You would think that line of reasoning would never get off the ground let alone get as much support as it got.

Actually, Brian, y... (Below threshold)

Actually, Brian, you needn't buy insurance at all, even though you purchase a car. Insurance and registration are the purview of the STATE, pursuant to operating a vehicle on roadways maintained by State and local gov't. Federal gov't has nada to do with that.

You can own a car and drive... (Below threshold)

You can own a car and drive it on your property without registration, insurance or inspection. ww

First of all, the car insur... (Below threshold)
Jim Addison:

First of all, the car insurance analogy is just STUPID - there is NO such federal mandate. Of course, it's hard to be a leftist without being fairly stupid.

Secondly, the interpretation of the lower-court Clinton toadies was that LACK of action was the equivalent of "interstate commerce" and subject to regulation. As Judge Hudson noted, under this interpretation, there is absolutely no limit to federal power. While this is clearly the position of the totalitarian left, the Founders would have recoiled at such a suggestion.

Stevie ...the law ... (Below threshold)

Stevie ...

the law underneath DADT has been tested by the courts and found to be Constitutional ...

DADT is not a law for those who haven't bothered to do the research ...

DADT is a Presidential directive ... (by Clinton I believe)

It's only the first head of... (Below threshold)

It's only the first head of the Hydra. And, it's only partially severed. Still lots of work to go to kill this beast.

If the ruling is upheld, th... (Below threshold)

If the ruling is upheld, that will be two major blows to ObamaCare funding.

The first, if you recall, was the recent refusal of Congress to implement the 23% medicare cut.

Remember how Nancy was going to use the money saved in order to make a partial payment on adding millions of people to the health insurance rolls? Another lie by Madame Speaker.

914 - Re seat belts - don't... (Below threshold)

914 - Re seat belts - don't know about them being a source of money for big gov, but as a believer in the laws of physics I'll gladly wear mine.

Air bags? Not a believer in them. There's something about an explosive charge staring me in the face that's just... unsettling. Kind of like this health care bill - when it goes off, I'm not sure WHAT is going to happen. And apparently, nobody else is either.

Car insurance and seat belt... (Below threshold)
jim m:

Car insurance and seat belt laws are all generated at the state level. The federal government has made some laws like speed limits etc a prerequisite to getting certain federal monies but that is an entirely different issue.

I can see the libs repsonding to the idea that you don't have to own a car so you can avoid car insurance by saying that you don't have to live so if you don't want health insurance you can kill yourself and opt out.

As for the issue of severability, regardless of whether it is ultimately ruled severable or not it is the end of obamacare if struck down. Obamacare without the mandate would eliminate the insurance industry in the US. No one would be able to afford insurance. Obama would be faced with the choice of either trying to ram a government run single payer system through a GOP controlled House or to accept massive changes or even repeal of major sections of obamacare.

To do nothing would be to leave people without insurance and to destroy the healthcare infrastructure of the nation. To do nothing would be to destroy 1/6th of the economy. No insurance industry + no government payer = no health care jobs. That's not going to be popular.

He's not going to have much of a choice but to sign the bills repealing obamacare. Unless he really wants to see 2012 make the 2010 debacle look like a garden party. Then again, maybe he'd want that.

I'm looking forward to Virg... (Below threshold)
Woop dere It Is:

I'm looking forward to Virginians opting out of the federally mandated Social Security program....

Oh, crap. You mean they can't?

Someone tell Judge Fathead that political hacks have no business on the bench.


#25The difference ... (Below threshold)
jim m:


The difference is that Social Security is a tax based program that everyone who works pays in to. And yes, you can avoid participating in Social Security. Some jobs are actually exempted from it. Also, you can not work or be paid in cash. There are legal ways around it.

With obamacare they have declared a fine for not purchasing health insurance. They do so claiming that the commerce clause allows it. By their reasoning a choice not to buy something is a form of commerce. So the government can regulate it and force you to do it and fine you if you don't.

Take that argument to its logical extension. There is nothing the government cannot force you to do and penalize you for refusing. It could decide that you need to buy a GM car every 5 years. It could decide hat you must purchase dear leader's book when it comes out. It could decide that instead of a fine for not complying with the economic activity it demands that you spend 10 years in prison.

You can like obamacare. That really isn't the issue here. It is the mandate to buy insurance or be penalized. THAT part of the law is unconstitutional. The risk is that if it is allowed to stand that the next law will take even more of our liberties away. The risk is that the penalties will get more severe.

So the only fathead is you. If you think that this ruling is without basis you are wrong. If the government wants to argue that it is constitutional they must find a way to do so that does not invoke the commerce clause.

Social security does not invoke the commerce clause. It is based upon Congress's power to tax. There is little question that that power is constitutional. Only a moron would be unable to see that difference.

I think the judge was right... (Below threshold)

I think the judge was right--this was heard on motions for summary judgement and the other 400 provisions were not involved. The doctrine of severability does not allow the dumping of an entire law in the absence of a severability provision, just all those provisions intertwined with the provision which is struck down. And that is exactly what Judge Hudson has done.

I rule Obama unconstitution... (Below threshold)

I rule Obama unconstitutional ...

I've never been a strong de... (Below threshold)
Tina S:

I've never been a strong defender of Obamacare but I do have to have to call a fowl on the activist judges ruling:

As the Huffington Post and others first noted last July, Hudson's annual financial disclosures show that he owns a sizable chunk of Campaign Solutions, Inc., a Republican consulting firm that worked this election cycle for John Boehner, Michele Bachmann, John McCain, and a whole host of other GOP candidates who've placed the purported unconstitutionality of health care reform at the center of their political platforms. Since 2003, according to the disclosures, Hudson has earned between $32,000 and $108,000 in dividends from his shares in the firm (federal rules only require judges to report ranges of income).


That's great Tina. Perhaps... (Below threshold)
jim m:

That's great Tina. Perhaps you could address the actual merits of the ruling instead of viciously attacking the character of the judge without addressing the facts of the case.

Typical lib. Doesn't get her way so she attacks the character of the person that she blames for it without even the slightest attempt to demonstrate why she believe he was wrong.


You know, it's possible that the judge actually made a good ruling despite having made what appears to be a rational and profitable investment. Of course, we can't tell that from your post because you never bother to confront the matter.

As for severability, it appears that the judge merely ducked the issue stating that since the law would not take effect for several years that he did not need to rule on that issue since the case would have time to be resolved before the whole law came into effect.

How would all the NY'ers fe... (Below threshold)

How would all the NY'ers feel if we did indeed treat Auto Ins like Health Ins, no matter if you do or don't have a car and drive you MUST buy auto ins so that uninsured can get free coverage and we can lower costs?

That's great Tina. Perha... (Below threshold)
Tina S:

That's great Tina. Perhaps you could address the actual merits of the ruling instead of viciously attacking the character of the judge without addressing the facts of the case.

I could have addressed the actual merits and simply rehashed what others have already said on Wizbang. Intead I chose to emphasize a point that has been ignored in both Wizbang and much of the lame stream media. Perhaps when I get off work I will also address the merits of the ruling.

"How would all the NY'ers f... (Below threshold)
Les Nessman:

"How would all the NY'ers feel if we did indeed treat Auto Ins like Health Ins, no matter if you do or don't have a car and drive you MUST buy auto ins so that uninsured can get free coverage and we can lower costs? "

We could throw it right back in their faces : "Well the precedent has already been set with Obamacare, you gotta pay whether you want it or not!"
There'd be about 5 million+ pissed off people from NYFC alone.

"I could have addressed ... (Below threshold)
jim m:

"I could have addressed the actual merits and simply rehashed what others have already said on Wizbang. Intead I chose to emphasize a point that has been ignored in both Wizbang and much of the lame stream media. "

In other words "I had nothing useful to say so I tried to distract from the topic by casting aspersions on the judge."

If he had ruled in favor of constitutionality and had been a leftist and had a record of donating to leftist institutions I'm sure you would have been right on it and posted that.


jim m, please don't accuse ... (Below threshold)
Tina S:

jim m, please don't accuse me of being a hypocrite based on how you think I would respond to a hypothetical situation. I'm done arguing for the night.

Tina,I just see yo... (Below threshold)
jim m:


I just see you ducking the issue and bringing an ad hominem attack instead. My point is that you would not even consider it to be an issue if a liberal judge, who contributed to leftist organizations and candidates, ruled in favor of obamacare.

Your concern only goes in one direction. You don't really care about anyone's political leanings interferring with their rulings. You only care about conservative viewpoints and judical rulings.

You don't argue a single sentance about the issue. That is what makes you a hypocrit in my mind. You don't care about the issue you are only trying to make the viewpoint illegal.

I'd also like to understand... (Below threshold)

I'd also like to understand how this judge is activist? I mean activist as I understand it refers to making law from the bench he's only ruled on the constitutional issues, which is what federal judges are supposed to do. You may disagree and feel the law is constitutional but hardly makes the judges ruling activist. And while you're at Tina, can you share with us all the background information you dug up on the judges that ruled in favor of this POS law? If you can't then that's why you're getting tagged as a hypocrit.

jim m, there are 2 more rea... (Below threshold)
Tina S:

jim m, there are 2 more reasons I did not argue the merits of the ruling. The first being that I have never been an enthusiastic supporter of Obamacare. You wont find any posts from me where I argued strongly in favor it, I have even been critical of Obamacare in other Wizbang posts. The second reason is that I am in no way qualified to argue constitutional rights on this issue. I have read opinions from both liberal and conservative scholars and believe that it will ultimately be upheld by the supreme court. But, I myself do not feel qualified to inject my own opinion on the constitutionality of the law.

Tina you don't feel qualifi... (Below threshold)

Tina you don't feel qualified to inject on the merits but you are qualified enough to call the ruling activist? And you cleverly ignored my question about the background research you did on the other judges that upheld the individual mandate.

John & Jim M,Event... (Below threshold)
Tina S:

John & Jim M,

Eventhough I am not a strong supporter of Obama care I do have concerns about the ties between Judge Henry Hudson and Campaign Solutions. The lamestream media has not only largely ignored this but the ones that have covered it simply ask the question of whether Judge Henry Hudson should have recused himself. The question they should be asking is should a Judge be allowed to own stock in polical consulting company.

The reason I don't think so is because it creates a system in which politicians can funnel money to judges. The politican pays the consulting company company for their services. A portion of that goes to a judge in the form of dividends.

Campaign Solutions collected fees from Judge Hudsons boss as well as many of the most outspoken members of congress who have been critical of the consitutionality of Obamacare.

Tina, I don't want to put w... (Below threshold)

Tina, I don't want to put words in your mouth but your non answer seems to suggest that this is the only judge you feel needs to have his background checked and his fitness to judge this issue questioned.

John, I'm at work. If you c... (Below threshold)
Tina S:

John, I'm at work. If you can wait until this evening I'll give you a fuller answer.

Okay -- chew on these, frie... (Below threshold)

Okay -- chew on these, friends:

A very well-respected GW law professor has just pointed out an obvious and indisputably fundamental error -- in Judge Hudson's opinion.

Professor Orin Kerr, writing on Professor Eugene Volokh's group law blog, noted that even the most ardent opponents of the reform law do not assert that the so-called "Commerce clause" is co-terminous with the "Necessary and proper" clause.

In making this error, Judge Hudson has essentially gutted his own opinion -- making it nearly impossible to sustain, on appeal.

So, it looks like the scorecard is more like 14.75 to 0.25, on the 15 decisions rendered thus far.

Only one federal case awaits, at the trial court level.

As ever, we shall see.


Let me amplify Professor Ke... (Below threshold)

Let me amplify Professor Kerr's line of reasoning, a bit, here:

What matters is whether Congress had the power to do what it did.

And it did. It is, in any event, a bedrock notion of constitutional law (since McCulloch v. Maryland) that whatever Congress has an emumerated power to acheive, it may do so by all necessary and proper channels, viz:

. . . .Although, among the enumerated powers of Government, we do not find the word “bank” or “incorporation,” we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are intrusted to its Government.

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional. . . .

-- McCulloch v. Maryland

All that need be shown, then, is that the tax is rationally related to a legitimate end Congress is seeking.

As to whether this is an undue intrusion -- into your rights to "life, liberty and the pursuit of happiness" (howsoever you see those dimensions), let me again ask:

Does it offend you that the IRS will regularly step into your carefully drafted loan documents, and -- even if you recite that "no interest shall be paid on this loan" -- and simply CHANGE those terms? That is, the IRS is plainly allowed (mandated) to "impute" interest income, to the maker of that otherwise clear on its face no-interest loan. Does that offend you?

That is the sort of very tall hurdle the Republicans must vault over, in order to win (at the SCOTUS) here.

Make no mistake, twin desires to avoid, or delay, paying (for health care -- in our case, or taxes on interest income -- in my posited example) are at the bottom of it all. And that is an "activity" -- one which Congress may plainly tax.

If you are going to be consistent, you must claim that is unconstitutional, as well. And that, my friend, puts you in Wesley Snipes land. [i.e., those wingnut tax-protester theories generally fail in the courts.]

Namaste, all. . .

Judge Hudson's decision is ... (Below threshold)

Judge Hudson's decision is good news, and we all hope that it will prevail when Obamacare finally reaches the Supreme Court two years from now. However, that is not certain, and there remain substantial political powers who regard this vast extension of federal power as acceptable based upon the Supreme Court's vast expansion of the interstate commerce clause since 1937. The only sure way to stop not only Obamacare, but the innumerable other ways in which the federal government has increased its power beyond the original scope of the Constitution, is to reverse those Supreme Court cases and restore the interstate commerce clause to its original meaning. Given how entrenched these Supreme Court precedents are, this will require a constitutional amendment restating the original, very limited scope of the interstate commerce clause. See http://www.timelyrenewed.com

Tina, I don't want to pu... (Below threshold)
Tina S:

Tina, I don't want to put words in your mouth but your non answer seems to suggest that this is the only judge you feel needs to have his background checked and his fitness to judge this issue questioned.

I read about 6 news articles from a variety of sources on each judges decision on Obamacare. When I read about the 2 cases in which judges upheld the constitutionality of Obamacare, I didn't come across any details that aroused suspicion that the judges were politically motivated. Therefore, I did not question their political activism.

By owning a significant portion of a conservative political consulting firm, the judge has injected himself into politics. What concerns me most is that through the consulting firm money is flowing from conservative politicians to the judge in the form of dividends as well as the value of his stock.

I am very concerned that there might be many other judges that invest in political consulting firms. I think it should be illegal and every judge should have their investments looked at to ensure it is not happening.

For Tina S. --Actu... (Below threshold)

For Tina S. --

Actually, the way Judge Hudson's quite disconcerting investment came to light -- was as a result of an existing set of federal rules (with which he complied):

All federal judges -- including those on the SCOTUS itself -- are required to disclose all their financial affairs, in detail. Those reports are released to the public quarterly, on a federal website.

To be clear -- with the obvious logical error in his opinion (and a pure mistake in setting out the existing state of the law, to boot!), coupled to the patent conflict-of-interest (his CSI shares paid dividends from fees paid in part by the AG -- while his company was representing the AG -- which AG ALSO appeared before him, as a proponent of repeal -- in open court!). . .

All mean that this one decision will be of scant moment in the larger narrative of health care reform.

There is a nominal conflict between the districts, though now -- and the SCOTUS will have to resolve it.

I will be shocked if Scalia (even as persuasive as he can be, with the right-leaning wing of the SCOTUS) is able to muster five votes -- to adopt his concurrence (whcih no other justice joined, just five years ago) in Gonzales v. Raich. Short of a complete retooling of 100 years of jurisprudence under the Commerce, and the Necessary & Proper Clauses. . .

the law will survive constitutional scrutiny.

Namaste, to all. . .

Actually, the way Judge ... (Below threshold)
Tina S:

Actually, the way Judge Hudson's quite disconcerting investment came to light -- was as a result of an existing set of federal rules (with which he complied):.

Yes, I am aware of that. I believe there needs to be an additional law that prevents a judge from investing or owning a business that can be used to funnel money from the politicians making the laws to the judges that decide on the legality of the laws. I find it shocking that no one in the lamestream media has commented on this aspect. Instead the little media coverage this has received only focuses on whether the judge should have recused himself, nobody in the lamestream media is asking whether such investments should be legal or are discussing the potential for abuse in such investments. I suspect Judge Hudson is not the only judge that receives dividends from a political consulting firm it needs to be found out how widespread this is among other judges.






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