Judge Hudson's decision in Virginia v. Sebelius is hardly the last word on the constitutionality of ObamaCare's individual mandate. My guess is that there are four votes on the Supreme Court to uphold the mandate and that the "swing vote" in this case may not be Anthony Kennedy but Antonin Scalia.
I have always thought it a closer question that most legal academics who tend to be unconcerned with the absence of structural limitations of the power of the federal government. One could certainly assemble cases that seem to point to sustaining the mandate.
The problem is that, if Congress can do this, there is little that it cannot do. I think that forces people to take a hard second look at expansive readings of the commerce and taxing powers.
One of the more interesting aspects of the opinion is Judge Hudson's conclusion that the mandate is severable, i.e., it can be struck down while the rest of ObamaCare stands. Putting aside the legal merits of that conclusion, doesn't it ruin the plan? How can you force insurers to cover pre-existing conditions without a mandate? I had thought that the penalties associated with the mandate are not high enough to force people to buy insurance that they don't need. But, if Judge Hudson is right, there are no penalties at all.
It is not clear to me, however, that, on Judge Hudson's reasoning, a mandate could not be recast as a tax credit. The problem is, I think, that the numbers wouldn't work unless one combined the credit with a tax increase.
In any event, the plan may be well on its way to unraveling.
This sentence confuses me:
"I have always thought it a closer question that most legal academics who tend to be unconcerned with the absence of structural limitations of the power of the federal government."
Did you mean to say?
I have always thought it a closer question than most legal academics, who tend to be unconcerned with the absence of structural limitations of the power of the federal government.
The following is not confusing and goes to the heart of the matter:
"The problem is that, if Congress can do this, there is little that it cannot do. I think that forces people to take a hard second look at expansive readings of the commerce and taxing powers."
Did Judge Hudson just make the DEA obsolete?
Rick: What should we make of the fact that Judge Hudson is an investor in a Republican political consultancy called Campaign Solutions Inc.?
I wonder why the Heritage Foundation didn't think this through when they proposed it in the 1990s.
What do you make of it? Provide more information, take a position, and defend it.
George: I'm not well informed on the issue, nor, for that matter, do I have a strong opinion on Judge Hudson's decision. But I did raise an eyebrow when I read that he is an investor in a campaign consulting group. So I purposely asked Rick an open-ended question to see how he sized things up.
I think most people want judges to be impartial (I put myself in that group), so I think it's understandable that some people might be concerned that Judge Hudson has an ownership stake in a company engaged in partisan politics by promoting GOP candidates.
Given how politically charged the health-care law is, does one have reason to be suspicious when the same judge rules in favor of the position favored by countless Republicans?
Are there ethics codes that are supposed to guide judges in preserving their impartiality?
Maybe not. I don't know. This is why I asked Rick to sort through it.
The recent Caperton case before the USSC purported to address some of the questions you raise. I observed a panel discussion of this topic at the recent Wis Supreme Court conference at Marquette Law School. This is an issue that does not lend itself to slogans, and your history is one that is not associated with oversimplifying things. Rick has done an excellent law review article on Caperton that I am sure he would provide a link to. As for the judge in this case, perhaps you can provide more information about what you read. I wonder what is meant by being an investor in a political consulting company.
George a 12/15 New York Times story notes: "Judge Hudson has deep Republican roots as a state and federal prosecutor in Northern Virginia. He is also a passive minority owner of a Republican political consulting firm, Campaign Solutions Inc."
Huffington Post caries this statement attributed to Campaign Solutions: "Judge Hudson has owned stock in Campaign Solutions going back 13 years to the founding of the company or well before he became a federal judge. Since joining the federal bench, he has fully disclosed his stock ownership in the company. He is a passive investor only, has no knowledge of the day to day operations of the firm, and has never discussed any aspect of the business with any official of the company."
My question is, why didn't Hudson sell his share when he became a judge? Didn't he realize that it gave the appearance (if not provide evidence) that he is a political partisan?
It makes me wonder if the plaintiffs were judge shopping (and, yes, I know liberals do it too), and that they hit the jackpot with Judge Hudson.
I am not sure how much "judge shopping" occurs at the federal level. I think it's the roll of the dice.
Perhaps the judge in this case should have sold his share. But would it have changed the spin? Doubt it. He would become a "former" investor in a GOP consulting firm.
People become federal judges in an environment that is highly partisan. Most are susceptible to claims that they have partisan ties.
In the end, this judge's ongoing passive interest in a partisan consulting firm might be ill advised. But did he apply a serious and rigorous approach to his decision? I don't think the investment is the way to judge that.
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