A federal judge in Virginia has ruled that part of the new health reform law is unconstitutional, the first such ruling anywhere in the country. Virginia Attorney General Ken Cuccinelli had filed his own lawsuit challenging the law. You can download the ruling (pdf) from his office. Reading in, reading in...
OK, back again: U.S. Judge Henry Hudson, who's been seen as a friendly and familiar draw for Cuccinelli from the beginning, agrees with the attorney general's argument that health reform violates the Tenth Amendment of the Constitution.
In particular, Cuccinelli says that the federal government overreaches when it uses the Constitution's Commerce Clause to mandate that everyone buy insurance or pay a penalty. Judge Hudson writes:
The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers. At its core, this dispute is not simply about regulating the business of insurance -- or crafting a scheme of universal health insurance coverage -- it's about an individual's right to choose to participate.
The flip side of that argument, of course, is that we're all participating anyway. When uninsured people go to the doctor, everyone else ends up paying some portion of what it costs to treat them. (And for what it's worth, Judge Hudson said that the penalty for not getting insurance is just that -- a penalty and not a new tax.)
Judge Hudson decided to "sever" the individual mandate, leaving the rest of the health reform law intact. It's not at all clear the law works without it, though, since the provision is key to controlling costs. Acknowledging that his won't be the last word, and that the individual mandate doesn't kick in until 2013, Judge Hudson left the rest of the law in place pending the inevitable appeals. Which means that the post-college crowd can still stay on their parents' health insurance, and folks with pre-existing conditions can still get coverage, and small businesses still get tax credit for covering employees, etc., for now.
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who said judges arent politicans?
Of course this is timed perfectly to give "Speaker" Boehner the ammunition he needs in January to start a repeal effort. This stupidity just makes me tired.
I love how everyone calls a decision political when it is against them! I don't mean just you or any one side, everyone does it. Personally, I don't accept the government mandating that I carry any kind of insurance, but I can understand that people see it differently. I don't think it will win in the supreme court or at least I hope it won't, but, whatever the outcome, I won't presume it was a set-up.
Don't get me wrong, PeterMac: I'm agin' Mr. Cuccinelli and think he's an unreconstructed...well, let's just say he's been born about 175 years too late.
So far, though, this is the THIRD decision on the constitutionality of the Healthcare Act and the score is: Constitutional 2, Unconstitutional 1.
Rachel, could you have just like indicated what part? The part that force people to buy insurance, the part that might cost the insurance industry something because they might have to be honest, the no pre-existing conditions part, the part the insurance companies make the most of their money on. They would have on me, my insurance would be about $800 a month as an independent contractor who has diabetes. The insurance person told me that they could easily insure me, however anything related to diabetes would not be covered for 2 years. I would have to pay them of course the full insurance rate for the 2 years, while paying for insulin, blood tests, syringes, medications and of course any complications. Yeah, sounded like a deal to me, so I told them NO. I'm grateful that I'm a vet and have the VA, they have done an excellent job and have done more than the insurance company I used to have, their "diabetes" expert and "training" was never reachable and never actually happened when I had insurance. At least the VA takes the time to fully train their patients on the life changes you have to make.. no more deep-fried shetland ponies a shake and some coffee with equal for me.. darn it.
It's "The part that force people to buy insurance" part
I love when people on this blog address their comments to Rachel Maddow, when the author of each blog post is in plain view. Tunnel, meet vision.
@BobWa-SEAWA -- I updated the post. The first graph was just me sharing the link to the ruling with everyone while I read it. And yes, it's me, not Rachel.
danger will robinson - judicial activism! judicial activism!
Funny thing is, this Republican judge's decision in some ways seems a good argument in favor of single payer. Not that was his intention, I'm sure. But the individual mandate is just a very poor way to try to control costs while a national single-payer system would work much better.
We are the Corporate States of America, the judges, big business's minions.
I prefer to call it the United Corporations of America
Hmmm...some corporations sell insurance. The health care reform requires everyone to buy insurance. The judge says you can't make everyone buy health insurance. Seems the "Corporate States of America" or the "United Corporation of America" gets screwed with this ruling, so what's your complaint?
Oh goodie.
If health reform had simply been one big private option that forced private companies to compete with a better and fairer system, I'll bet we wouldn't have to go through this.
Exactly. I would give up EVERYTHING in health care reform for a public option that did those things... stay on your parents' plan until you're 25, children can't be rejected, pre-existing conditions can't be rejected... you don't need to make it a law, or force people to buy insurance. That's what sets off the so-called freedom lovers. This non-profit plan would cost less because it had less overhead and made no profits, and it would force the private insurers to reduce costs and offer those good things like no pre-existing conditions, etc. in order to compete, not because it was the law. You could call it "the free market option".
The only part of "insurance reform" that was declared unconstitutional was the individual mandate. Frankly this mandate has always been a republican position.
Then again, I'm disappointed that we didn't get at least a public option if not joining the rest of the industrialized world with a national health care plan.
Exactly. In fact, the mandate will be quite harmful to many who can't afford health care right now. And premiums will go up, but what can the poor do? They have to buy insurance, and there's no public option...
Just another reason why I cannot invite republicans to my Christmas Dinner.
You don't say? Actually, you didn't say. Never mind.
As a long-time Virginian I wish I could feel like this was done to protect me, instead of just being a political Anti-Obama play by our republican state administration
And a collosal waste of "tax-payer" money! THIS is what your elected leaders feel is the best use of the limited dollars available in your state? How many homeless shelters could be stocked with these wasted dollars?
Shameful!
Judge Hudson- a George W. Bush appointee.
now we need to challange the states law that requires us to have auto insurance
Not convincing. The idea some "activity" isn't in place so the provision isn't necessary and proper to uphold the overall scheme ... nope. We all are part of the system here, one way or the other, and denying it is artificial. And, "activity" or not, the provision -- like it on policy or not -- remains necessary and proper to uphold the interstate commercial regulation involved. And, it is a sort of "tax" just as a mortgage deduction can be. Those w/o insurance ultimately costs the government money and the law gives you an option to pay a tax in that case. The word "tax" might be politically unsavory, but that political spin doesn't make this any less true.
One of the main GOP criticisms of the Clinton Health Security Act of 1993 was the lack of a mandate. They INSISTED that if everyone was not required to buy insurance, the plan would not work, would cost too much, etc. NOW they are against the mandate. Can we say flip-flop? I studied the Clinton Act in 1997 when in college and discovered that almost EVERYTHING the GOP said about the plan was a lie. Why do we keep playing this scene over and over again?
Why shouldn't people be required to have insurance? We are required to have a drivers license and auto insurance. Maybe that should be contested too. C'mon people, have a little self responsibility. Just remember.....'there ain't no free lunch'.
You only have to have car insurance if you have a car. If you live in a city and use public transportation, you do not need insurance. You have an option. Under health care you do not have a choice.
Yes you do. That's the part I don't understand with this ruling. You do not have to purchase health insurance if you do not want to. If you don't then you will not get to deduct your insurance or receive a rebate back when you file to help you purchase new insurance. You will also have to pay a higher tax rate. It works just like when you file with a mortgage. With a mortgage you pay less than without one (such as with renters). Which is why, if this is ruled unconstitutional and upheld, I want to know if that means I won't have to pay that higher tax rate as a renter?
Not everyone has the option of living in a big city. Plenty of states that don't have a big city with public transport force you to buy auto insurance. Though it would be nice if Republicans would be consistent in applying this kind of argument, and as a result would support public transport.
I agree with you. A lot of people will opt to pay the penalty. When they get sick they will apply for insurance, since they can not be denied. Then the insurance premiums for the rest of us will go up. In addition people that live in the underground economy and do not file tax forms, will continue to go to the emergency room. If you do not believe that take a look at the statistics for emergency room rates in a state that has universal health: MA.
@Robert E Intriago: And you would only need to buy insurance if you are living and could theoretcially go to a doctor, just as you should only have to buy auto insurance if you have a car and could theoretically be in a crash.
Umm that's not the way insurance coverage works. When you purchase health insurance it doesn't go into effect immediately unless that's a particular policy the insurance company enacts. Usually speaking, though, when you purchase insurance there is a date when it goes into effect. Usually that date is at least 1 day after you've purchased the policy (if only because all the paper work requires that much time to process you as a new customer). If you actually were taken to the emergency room and purchased insurance that day and it were to go into effect immediately the insurance company would still deny you because the injury for which you were hospitalized happened prior to the time that you were covered. It's just like when you have a car- you cannot purchase insurance on your car after you've had an accident and then ask the insurance company to pay for the repairs.
Emergency room use goes up because increasing numbers of patients cannot get to their primary care physicians, not because patients lack insurance. From a Boston Globe article earlier this year:
http://www.boston.com/news/local/massachusetts/articles/2010/07/04/emergency_room_visits_grow_in_mass/
Mickey: The law requires that insurance companies give you health insurance even if you have pre-existing conditions. If you contract cancer and have no insurance, the law requires that you be insured if you decide to buy insurance.
MikeinIndy:The progressives will find a way to tax the dead. You can count on it. They have not found a tax they did not like. The Conservatives have not found a tax they like. Somewhere in the middle there has to be an answer.
Mightbeliberal: So what you saying is that the more we insure people, unless we have more doctors, the more people will go to the emergency room? So the health care bill does not solve the emergency room problem?
Pre-existing conditions arose out of the double-jeopardy rule, that is true. However this would simply mean that the insurance company couldn't deny to treat you if you were admitted after you've purchased coverage. If you're diabetic and you're admitted to the hospital and you don't have insurance but you buy it the same day that hospital visit will not be paid for by the insurance company. The next hospital visit will. Or say that the doctor gives a prescription for insulin. That prescription would be covered. If we're talking about something like cancer you would have presumably already been diagnosed with cancer before admittance. If you are admitted, buy insurance, and then are diagnosed with cancer all treatment after the time you purchased your coverage would be paid for by the insurer. If you break your leg, go to the hospital and then purchase insurance, the insurance company will not be legally required to pay for that hospitalization.
People go to the emergency room because they don't have insurance (usually speaking). Sometimes you have to go to the hospital simply because clinic's don't have the ability to treat you (most clinics, for example, don't have x-ray machines so they send you to the hospital to get x-rayed). But most of the time people go to the hospital because they lacked insurance and had a treatable condition, but the problem has now escalated to the point of hospitalization.
@Robert -
According to the Globe article I quoted, an academic in the public health care field noted that the increase in emergency room visits reflects lack of access to primary care, whether due to lack of insurance or other reasons is not defined. In Massachusetts specifically, the article explains why the new requirement under state law to have health insurance did not cause the increase in emergency room use.
It is possible that not enough doctors could eventually become a problem when everyone has health insurance and (presumably) is thus able to afford primary care. The Wall Street Journal thinks so. There is already a shortage of primary care physicians in the US; the number of U.S. medical school students going into primary care has dropped 51.8% since 1997. But there are other factors besides lack of insurance that prevent patients from accessing primary care in a timely manner.
One significant issue is not being able to take time off from work to see the doctor. Many (most?) primary care physicians have limited or no hours in the evenings and on weekends. Furthermore, many primary care physicians generally see patients by appointment only and do not have facilities for treating walk-ins. Lack of readily available transportation or child care can also be deterrents to patients seeking timely primary care. These barriers are real and do affect patients with health insurance. They will not disappear now that health care reform is the law of the land.
Rachel, I love you to bits - as you will see, if you go to my website for audio-journalism - http://my-left-ear.com/
So it makes me very sad when - Dec 10th - you talk about China "buying up America's debt". It makes it sound like China is sinister, and America is the victim in all this.
How about, instead, occasionally reminding your audience that millions of Chinese work hard every day to produce goods which are then shipped to America for you all to enjoy. And what does China get in return - so bits of paper which will probably turn out to be worthless. (i.e. Government bonds.)
At some point, we will be told that we have to go to war with China, and maybe the reason we will be given will start with the fact that they were "buying up our debt."
So please, keep it real - then you will be doing your bit to undermine this war propaganda before it even gets properly started.
All the best - Mick (Scotland)
We've always been at war with Eastasia.
Nobody in my state is "required" to have a drivers license, although most have either that or id card...
But...you don't have to have auto insurance if you don't own a car. Therefore, auto insurance while mandatory to drive, is not mandatory for everyone
Realistically, the average person in many areas is required to have a car. If they do not, they have to subsidize insurance anyway by paying for a bus, cab, train etc. in which part of the cost involve insurance costs.
But, fine. People do usually pay and are not able to opt out of police and fire insurance. That is, they pay taxes, and part of it goes toward those services. Why? Because people always have some possibility, unlike car insurance, of needing such things. Health costs are comparable.
The "we don't all have cars" line therefore doesn't mean much. But, it is applied all the time as if it does.
Only in the city are police and fire protection paid for with taxes. And usually the people vote on every local tax that funds these services. If they don't want the service, they don't vote for it. A good example is volunteer fire departments.
The problem with the health insurance mandate...aside from my dislike...How many people will take the "penalty"? For anyone in the lower income levels (not the poor who may get subsidies anyway) those who earn 30,40,50K who have a family...their insurance is going to be outrageous if not provided by their employer. The tax penalty will be much easier, to pay...and the public would still be on the hook...
Why not a single payer system
The 'mandate' at the end of the day has a small overall effect since only a small percentage of the whole don't have insurance, some helped by the legislation's extensions of Medicaid and the like. It therefore serves as a small pressure point while having some symbolic effect as well. Given the numbers, even "small" has some effect on a national system. And, since those who opt out w/o this provide no value to the government, the tax penalty STILL gives you something, and the people in the long run are likely not to cost too much money, since they tend to be more healthy in the long run.
The single payer system is a better policy. Better policies aren't always possible in the real world. Sorry, "news at eleven" type sarcasm is hard to hold back here.
And, [for Donna] "cities" aren't the only places where tax dollars go to police and fire departments. But, anyway, the people "voted" for this system too by "voting" for Democrats who put it in place. I don't see the point of that comment.
Just so I have this right...judicial activism is ok when it's in favor of the Republicans. Got it.
So does this mean that you are no longer required to pay that higher percentage tax if you rent instead of mortgage? I would like to get a refund from the federal government please.
Sadly, even though the Repubs do not back up what they say, their propaganda arm is strong enough to sway a lot of uninformed people out there.
The Republicans have never initiated any program for the American working public - except for No Child Left Behind, which was taken up by Ted Kennedy and passed for Bush. All programs - SS, Medicare, Medicaid, SS Disability, Children's Insurance Fund, Head Start, Campaign Finance reform, Meals on Wheels, Minimun Wage, Student Loans, Mammography Quality Standards Act, Family and Medical Leave Act, to name just a few - were initiated by Democratic presidents (FDR, LBJ, JFK, Clinton) and Ted Kennedy. The Republicans have given the American working public absolutely NOTHING because they are too busy taking care of the upper 2% who contribute to their campaigns. The Dems need to constantly inform the public of this or the uninformed will continue to vote for the Republicans. The Democrats need to unite, as the Republicans have, and fight back and help the uninformed face the truth.
It is amazing the hypocrisy of people towards judges. When a judge reverses something they see as a social injustice, they praise him. When a judge reverses something they hold dear they call him activists or political hack. The judges that reversed DADT,Arizona's immigration law and Gay marriage were upheld in this blog as great, erudite and having a social conscience. When a judge reverses a law that they think is great, even though Obama attacked Hillary for proposing mandatory insurance, they attack the judge. They can not conceive that a judge truly believes in what he is saying and decided that the law based on his interpretation of the Constitution is. I believe most judges, regardless of party, do what they think is best.. Most of you need to read Supreme Court Breyer's book: "Making Our Democracy Work" Mr. Breyer is a progressive and believes almost all judges rule based on their interpretation of the law and not for political reasons.
Except this judge's interpretation of the law is that the government doesn't have the right to tax, which is ludicrous. People have been forced to buy auto insurance, and social security and medicare for decades, and no judge ever dreamed of trying to strike those down. He's a rogue. Whereas judges have a lot of precedent to uphold non-discrimination equal protection under the law clauses, as with DADA and marriage equality. Our problem is with interpretation of the law that is not sound.
Benjamaino: Mr. Obama said on ABC to George Stephanopoulus that it was not a tax: http://www.youtube.com/watch?v=K0p9Txm55g8
The judge ruled based on the Interstate Commerce clause and stated it was not a tax, agreeing with Mr. Obama.
until 1983, social security was optional if you put the money into a private account. auto insurance is optional if you don't own a car and is a state, not federal, function. perhaps medicare is unconstitutional, but no one has ever challenged it.
Repubs have had almost 50 years to challenge medicare, so if they haven't done so by now, that's a pretty sure indication that even they don't feel they have a leg to stand on in court.
But if the judge said it was constitutional then that would mean VA's State law is unconstitutional. They have a new law saying people can't be forced to buy health insurance. I'm sure that will get McDonnell and Cuccinelli a lot of votes in 2013.
Anyways, I don't think that judge wants to go up against a governor and attorney general. Bush would just fire the guy. At least Obama doesn't usurp the constitution like Bush did. Bush would have that judge fired in a heartbeat.
Probably why they should have just improved and opened Medicare 4 everyone - but that would have been the easiest (and cheapest) thing to do.
Medicare is on their list to kill too. They want everything privatized to complete the oligarchy.
@TheAubs: She's the public face of the blog, that's why people address their comments to her. The sad reality of the fact is that those of us who work in TV news in the background (like I do) are overshadowed by the people who work on camera.
I can count on the fingers of one hand the number of times Maddow herself has posted a thread on this blog, at least since March of 2010. I believe most do note who posts the threads, there are just some who ignore that information.
As I recall, the mandate was one thing dems knew might be a problem, and they were willing to drop it if necessary.
Not having a mandate for health insurance is similar to states like here in MN where you are not required to wear a helmet when riding a motorcycle. It is supposedly a matter of "freedom" and "personal responsibility", but when a motorcyclist without a helmet receives a head injury in a crash, guess who pays? Their insurance company, and if they don't have health insurance, we taxpayers foot the bill. So, the cost of this "freedom" is the freedom to push your irresponsibility and its consequence on everyone else. Right now, I believe something like 54 million people have no insurance. Who pays when they get sick or injured, and don't have insurance? We all pay, in the form of higher insurance premiums and higher medical costs. The repubs seem to be saying that their culture of personal responsibility doesn't extend to health insurance, and that law that actually brings tens of millions of new customers to insurance companies must be repealed because it forces people to take responsibility, and they really want to make sure that healthcare costs remain high.
If fining someone for not buying health insurance is wrong then why is it right to fine someone for not buying car insurance? That ticket for driving without car insurance is not a tax. It's a fine! It's a penalty for not buying car insurance. If I'm a billionaire then why should I need car insurance? I can just pay out of pocket if I get into a wreck. So why is a millionaire or billionaire forced to buy car insurance if they choose to drive?
It isn't a fine. No one is going to issue you a ticket for not buying health insurance. A fine implies that there is legal consequences to doing whatever it was that got you fined in the first place. So, in the case of car insurance, if you do not present proof that you have car insurance after the fine is issued your license can be suspended or you can be jailed. Refusing to purchase health insurance just means you're going to end up opting out of all the tax deductible options given to you by the federal government as a reward for having health insurance. It works exactly like the tax deduction you get for having a mortgage as opposed to owning a home outright or renting. You can choose to pay the higher tax, just as I choose to pay a higher tax by renting a home instead of purchasing one. Conservatives usually complain that taxes are too high (in fact most people, regardless of political orientation, complain taxes are too high). Often times people will argue that by taxing someone you are punishing them. So in the case of the 250k/yr income bracket people would argue that by taxing every dollar beyond 250k/yr you are punishing someone for being successful. The argument would go that by taxing this higher rate you discourage people from wanting to make more than 250k/yr. If this is the case then the same logic would apply to health insurance. You are punishing someone for burdening society with his/her medical care costs. If you opt into the insurance system then you no longer have to pay that higher tax. By opting out you are forcing yourself to pay a higher tax rate than what you have to pay. If you do so this either means A. that argument about income is, and always has been, false OR B. you're stupid (I suppose there could be a C option which is you're a masochist and enjoy self destruction...but that gets into a whole grey area).
I should note here that when I say you I'm not referring to you Sam. Lol I suck at grammar ;-)
So after this gets the repug treatment we wont have to buy car insurance anymore?
I have lived in states in the south where you can either buy auto insurance, or pay $500 each year to opt out. If you are hit by one of the folks who opt out, your insurance company has to pay for everything, and you will never get a red cent from the person who hit you. That's repub "society of personal responsibility " for you.
No, this means we'll only be able to buy it from their buddies' companies, who will jack us for twice the cost it would have been before because, hey, those guys NEED the money. How else would they be able to get all those gorgeous golden parachutes?
Does this set some kind of precedent? People who don't participate just have to pay a higher tax. You could look at it the other way around and say tax cut incentives punish people who don't participate in them.
Everyone has to pay for Medicare and Social Security. There's no way this ruling can stand.
That's what has me so confused @Romeo.
then why do I have to buy car insurance?