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Not Dead Yet

For those of you who were not buried under piles of books for the past two weeks, the fact that Virginia Judge Henry Hudson ruled the insurance mandate portion of the Affordable Care Act unconstitutional is old news.  As I clawed my way out of the black hole of academia, I was greeted with right-wing gloating that deemed Judge Hudson’s ruling a fatal blow to the “illegal mandate” and subsequently to health care reform as a whole. 

Our very own attorney general Jon Bruning is one of those declaring the insurance mandate dead and gone:

My brain may be addled by finals, but I beg to differ.  One lower court ruling hardly means that the Affordable Care Act is dead and buried.

To begin, the recent health care lawsuits have exposed a partisan stripe in the American judiciary.  The ruling by VA’s Judge Hudson follows the national trend where “judges appointed by Republican presidents have ruled consistently against the Obama administration, while Democratic appointees have found for it.”

However, Hudson has a deeper political history than many judges.  He served as Arlington’s commonwealth attorney as a Republican, ran for office as a Republican and was received appointments exclusively from Republican officials.  Beyond that, Hudson also holds sizable share of Campaign Solutions, Inc., a Republican consulting firm that has worked with John Boehner, Michelle Bachmann and John McCain (to name a few “star” clients) and actively campaigned against health care reform.  Individually, these associations are sketchy at best.  Together, they cast more than a shadow on Hudson’s ruling.

Politics and ethics aside, Hudson’s opinion may not hold water on a constitutional level.  Let’s not forget that the two other judges who ruled on this exact same lawsuit found that the insurance mandate was completely within the bounds of the Commerce Clause and, therefore, constitutional.  Many legal critics have found serious logical flaws in the heart of Hudson’s opinion regarding a conflation of the Commerce Clause and the Necessary and Proper Clause that they believe will lead to his decision being overturned.  

Finally, many pundits have completely overlooked the possibility of reformed health care system that functions just fine without a mandate.  Our own Senator Ben Nelson is exploring mandate-free options for health care.  Nelson recently requested a report from the Government Accountability Office and the Congressional Budget Office on the issue.  One of Nelson’s alternatives includes “using incentives and disincentives in place of the mandate, possibly through periods of open and closed enrollment for new insurance plans.”

The battle over health care is sure to be long and brutal, but it will by no means hinge on a single, lower court ruling.  To put it another way, health care is like Tubthumping by Chumbawumba.  It may get knocked down, but it gets back up again.  And for the 40 million Americans that this legislation helped insure and the countless others who can now access quality care, here’s hoping that nothing keeps it down.

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BOLD Nebraska
208 S. Burlington Ave., Ste 103, Box 325, Hastings, NE 68901