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.