Fed judge rules health insurance reform unconstitutional

Legislation from the bench normally refers to judges getting on their high horse and trying to force social change in violation of the constitution, in this case and hopefully many more to follow we have judges voiding the legislative and executive branches attempy at conspiring to violate the constitution by way of grabbing power that they are not entitled to have. Do you see the difference?

Do you think that the appeals court will be bypassed altogether? Judge Hudson's decision says nothing on that point.

TPMDC
Amateur Hour: VA Judge Makes Elementary Error In Health Care Ruling
Brian Beutler | December 14, 2010, 10:25AM

The Virginia federal district court judge who ruled yesterday that the individual mandate in the health care bill is unconstitutional is catching a lot of flack -- and not just for having a financial interest in an anti-health care reform consulting firm.

Legal experts are attacking Judge Henry Hudson's decision on the merits, citing an elementary logical flaw at the heart of his opinion. And that has conservative scholars -- even ones sympathetic to the idea that the mandate is unconstitutional -- prepared to see Hudson's decision thrown out.

"I've had a chance to read Judge Hudson's opinion, and it seems to me it has a fairly obvious and quite significant error," writes Orin Kerr, a professor of law at George Washington University, on the generally conservative law blog The Volokh Conspiracy.

Kerr and others note that Hudson's argument against Congress' power to require people to purchase health insurance rests on a tautology.

The key portion of the ruling reads:

Quote:

If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Kerr notes that this is all wrong. The Necessary and Proper Clause allows Congress to take steps beyond those listed in the Constitution to achieve its Constitutional ends, including the regulation of interstate commerce. Hudson's argument wipes a major key part of the Constitution out of existence. Kerr says Hudson "rendered [it] a nullity."

Kerr's co-blogger, Case Western Law Professor agreed, though he cautioned that Hudson's error doesn't necessarily imply that the mandate is constitutional.

In an interview with TPM this morning, Timothy Jost of Washington and Lee University called the logic on this point "completely redundant."

"In Hudson's opinion he basically conflates the Commerce power and the Necessary and Proper power and says that each provision in a statute has to be looked at independently from every other provision, and each provision has to be independently authorized under the Commerce Clause," Jost said. "And if it isn't, the Necessary and Proper Clause doesn't grant any more authority."

As a result of this error, Hudson never engages the key question in the case: whether the individual mandate is a reasonable way for Congress to implement regulations within its purview.

"Given that existing Supreme Court case law gives the federal government a fairly straightforward argument in support of the mandate under the Necessary and Proper clause, Judge Hudson's error leads him to assume away as a matter of 'logic' what is the major question in the case," Kerr writes. "That is unfortunate, I think."

Thoughts on how the ruling will fall???

Kerr and others note that Hudson's argument against Congress' power to require people to purchase health insurance rests on a tautology.

The key portion of the ruling reads:

Quote:

If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Kerr notes that this is all wrong. The Necessary and Proper Clause allows Congress to take steps beyond those listed in the Constitution to achieve its Constitutional ends, including the regulation of interstate commerce. Hudson's argument wipes a major key part of the Constitution out of existence. Kerr says Hudson "rendered [it] a nullity."

Yes, I see the difference. In one case the actions supports your political view and in the other it doesn't.

That assumes, however, that the activity here (the mandated purchase of health insurance) is interstate commerce. But that's assuming that the mandate is interstate commerce, which is something that Judge Hudson specifically said it wasn't. That's begging the question.

Well, I think you could make an argument that Hudson is wrong with his assessment that the Mandate - and the Health insurance that it represents - isn't interstate commerce.

Cycloptichorn wrote:

Well, I think you could make an argument that Hudson is wrong with his assessment that the Mandate - and the Health insurance that it represents - isn't interstate commerce.

I did make that argument. But that doesn't mean that Hudson made the error that Kerr and others accuse him of making. On that particular point, I think Hudson was right and Kerr was making his own logical error.

Are you suggesting that, because the judge's conclusion was wrong, that all of his reasoning must have been wrong as well?

You're obviously addressing someone else's argument, so I'll just stand aside at this point.

Yes, I see the difference. In one case the actions supports your political view and in the other it doesn't.

Yes, I see the difference. In one case the actions supports your political view and in the other it doesn't.

in one case the judges act in a manor that I find consistant with the constitution and the spirit of the three banch framework of the federal government, and in the other judges are going outside of their lane.