Administration officials have expressed concern that the lawsuit against Obamacare will achieve a substantial victory in Virginia before the end of the year. Henry E. Hudson of Richmond has promised to rule on the constitutionality of the health care law by the year’s end, and preliminary statements by the judge have left the White House fearing the worst. In particular, Hudson has expressed a great degree of skepticism over the constitutionality of the mandate requiring individuals to purchase a health care plan. The New York Times interviewed an Administration official about the case:
Although administration officials remain confident that it is constitutionally valid to compel people to obtain health insurance, they also acknowledge that Judge Hudson’s preliminary opinions and comments could presage the first ruling against the law.
“He’s asked a number of questions that express skepticism,” said one administration official who is examining whether a ruling against part of the law would raise questions about whether other provisions would automatically collapse. “We have been trying to think through that set of questions,” said the official, who insisted on anonymity because he was not authorized to discuss the case freely.
Administration officials, as well as some lawyers for the plaintiffs, agree that Judge Hudson seems unlikely, based on his comments from the bench, to enjoin the entire law. The judge volunteered at a hearing last month that his courtroom was “just one brief stop on the way to the Supreme Court.”
There has only been one ruling of any substance on the credibility of Obamacare. Ruling that the bill is in fact constitutional, a federal judge in Michigan upheld the legality of the legislation. However, as the suit has advanced, judges in Florida and now Virgina have acknowledged that the arguments of the opposition have merit. The federal judge in Michigan had been appointed by Bill Clinton, while the other judges were appointed by GOP Presidents.
While it is assurred that the final ruling will be made by the Supreme Court, the verdicts of these lower courts are far more substantial than it might seem. Each judge that rules against the stipulation that citizens be required to purchase health insurance will also be required to extend judgement on the constitutionality of enforcing other mandates of the bill:
Congressional bill writers did not include a “severability clause” that would explicitly protect other parts of the sprawling law if certain provisions were struck down.
An earlier version of the legislation, which passed the House last November, included severability language. But that clause did not make it into the Senate version, which ultimately became law. A Democratic aide who helped write the bill characterized the omission as an oversight.
Without such language, the Supreme Court, through its prior rulings, essentially requires judges to try to determine whether Congress would have enacted the rest of a law without the unconstitutional provisions.
Because the Senate amended the bill to remove the severability clause, it makes any ruling in opposition to the law subject to the discretion of the judge in question. Administration officials concede that judges who decide that forcing citizens to buy coverage is unconstitutional will also find the accompanying legislation unlawful:
The Justice Department, which represents the Obama administration, acknowledges that several of the law’s central provisions, like the requirement that insurers cover those with pre-existing conditions, cannot work unless both the healthy and the unhealthy are mandated to have insurance. Otherwise, consumers could simply buy coverage when they needed treatment, causing the insurance market to “implode,” the federal government asserts.
It seems likely that the first major judicial opposition to health care reform will materialize before the year is up, and this opposition will have a pivitol impact on the bill’s legitimacy, posing stringent barriers to the enforcement of every aspect of the legislation.