Virginia court rules against health care mandate

VIRGINIA COURT RULES AGAINST HEALTH CARE MANDATE…. Conservative opponents of health care reform have been largely counting on the courts to undo what they couldn’t defeat in Congress, but they haven’t had much luck. That changed today.

In October, a federal judge in Michigan found the law constitutional, ruling that the individual mandate — originally a Republican idea, incidentally — is entirely legal through the Commerce Clause. In November, a federal judge in Virginia came to a nearly identical conclusion.

These victories weren’t unexpected. As Jonathan Cohn noted a while back, the only way to reject the mandate is to take a “fairly radical” reexamination of the Commerce Clause.

But a fairly radical Republican, Virginia Attorney General Ken Cuccinelli, carefully chose a court with some fairly radical judges, hoping to get a fairly radical ruling. And that’s exactly what happened this morning.

A federal district judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first court in the country to invalidate any part of the sprawling act and insuring that appellate courts will receive contradictory opinions from below.

Judge Henry E. Hudson, who was appointed to the bench by former President George W. Bush, declined the plaintiff’s request to freeze implementation of the law pending appeal, meaning that there should be no immediate effect on the ongoing rollout of the law. But the ruling is likely to create confusion among the public and further destabilize political support for legislation that is under fierce attack from Republicans in Congress and in many statehouses.

In a 42-page opinion issued in Richmond, Va., Judge Hudson wrote that the law’s central requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution.

For those keeping score, there have now been three federal court rulings, two won by supporters of reform, one won by opponents. Reinforcing the notion of a politicized process, the two victories were delivered by judges appointed by Democratic presidents, while today’s ruling was issued a Bush appointed jurist with a long history of Republican activism in Virginia.

Indeed, as far as I can tell, pretty much everyone expected today’s ruling to come down as it did.

I’d also note that Hudson’s ruling today certainly appears to be a classic example of what conservatives like to call “judicial activism” — he rejected a common legal standard to overturn a congressionally-approved law to reach an ideological outcome.

It should add fuel to the rhetorical fire. Earlier this year, there were increasingly common criticisms of “conservative judicial activism” in the discourse, with an overabundance of examples of judges on the right, guided solely by ideological goals, making rulings in “an aggressively activist manner.”

E.J. Dionne put it this way: “[I]t should become clear that the danger of judicial activism now comes from the right, not the left. It is conservatives, not liberals, who are using the courts to overturn the decisions made by democratically elected bodies.”

Of course, the right probably won’t mind today, since judicial activism is fine so long as they approve of the outcome.

I suspect I’ll have more later, but if you’re looking for a copy of the ruling itself, it’s online here.