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Federal Judge Rules Health Care Mandate Unconstitutional

12:35 PM, Dec 13, 2010 • By JOHN MCCORMACK
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U.S. District Judge Henry E. Hudson has ruled that Obamacare's mandate that citizens purchase health insurance is unconstitutional. Philip Klein reports on the suit, which was filed by Virginia's attorney general Ken Cuccinelli:  

The Virginia suit is one of the two main legal challenges to ObamaCare, the other one is led by Florida and involves 19 other states.

Opponents of ObamaCare had been hopeful, because in his August ruling allowing the case to proceed, U.S. District Court Judge Henry Hudson, an appointee of George W. Bush, embraced the argument that ObamaCare represents a novel use of the Commerce Clause that has yet to be considered by the courts.

The decision will now be appealed by the Obama administration.

UpdateDaniel Foster notes: "Crucially, however, Hudson refused to issue an injunction preventing the implementation of the law, and ruled that the unconstitutional parts of it could be severed from the whole." Most laws have an explicit "severability clause" stating that if one part of the law is found unconstitutional the other parts stand. The final version of Obamacare didn't have that clause. Hudson's decision that the rest of the law could stand, despite the lack of a severability clause, is not unprecedented. David Catron pointed out recently that "the Supreme Court recently invalidated an important part of the Sarbanes-Oxley accounting law, which contains no severability clause, while leaving the rest of its provisions in place." 

Of course, not being able to mandate that people buy health insurance while mandating that insurance companies must offer insurance to everyone at the same rate, without regard to their pre-existing conditions, will send the insurance market into a "death spiral." So, if this ruling stands at the Supreme Court, it would be a devastating blow to Obamacare.

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