As you all know, on Monday, Judge Henry Hudson of the Federal District Court in Richmond, Virginia ruled that the individual mandate within the Affordable Care Act was unconstitutional. In response to the verdict, Senator Orrin Hatch said the decision was a “great day for liberty”. Senator Hatch couldn’t be more wrong. To protect the liberty of our country, Judge Henry Hudson, part-owner of a political consulting firm with a vested interest in his decision, should have never presided over the case.
As was reported by our friends at TPM on Monday, Judge Hudson is an owner of Campaign Solutions, a Virginia-based political consulting firm that has previously worked against health care reform, and worked for Republican clients opposed to healthcare reform including Virginia Attorney General, and plaintiff, Ken Cuccinelli. According to NPR:
Hudson's annual financial disclosures show that he owns a sizable chunk of Campaign Solutions, Inc., a Republican consulting firm that worked this election cycle for John Boehner, Michele Bachmann, John McCain, and a whole host of other GOP candidates who've placed the purported unconstitutionality of health care reform at the center of their political platforms. Since 2003, according to the disclosures, Hudson has earned between $32,000 and $108,000 in dividends from his shares in the firm.The Association for Justice continues:
Judge Hudson’s financial disclosure forms show that from 2003 through 2008, Judge Hudson received “dividends” from Campaign Solutions Inc., among other investments. A Republican online communications firm, Campaign Solutions, has done work for a host of prominent Republican clients and health care reform critics, including the RNC and NRCC (both of which have called, to varying degrees, for health care reform's repeal).As reported by TPM, there is a well-respected federal statue barring justices from presiding over cases where their impartiality may be questioned:
The president of the firm, Becki Donatelli, is the wife of longtime GOP hand Frank Donatelli, and is an adviser to former Alaska Gov. Sarah Palin, among others. Another firm client is Kenneth Cuccinelli, the Attorney General of Virginia and the man who is bringing the lawsuit in front of Hudson's court. In 2010, records show, Cuccinelli spent nearly $9,000 for Campaign Solutions services.
"Federal judges are required by statute to disqualify themselves from hearing a case whenever their impartiality might reasonably be questioned. It's a hyper-protective rule and for good reason. At the very least, his continued financial interest in Campaign Solutions undermines the perceived legitimacy of his decision."Any reasonable person would agree Judge Hudson’s impartiality should be in question. With a vested financial stake in a political consulting firm that was working against health care reform, has Judge Hudson violated federal statue by not recusing himself from hearing the case brought by his former client?
Judge Hudson has a well-publicized history of questionable ethics and a reliable ability to work on behalf of the Republican Party. In his personal memoir titled “Quest for Justice: From Deputy Sherriff to Federal Judge…and Lessons Learned Along the Way”, Judge Hudson said, “I lied to the General Assembly and the Fairfax County Bar Association when I told them unequivocally that I had no intention of seeking a federal judgeship.” The Washington Post reports:
Two other federal judges have ruled that the law passes constitutional muster. No judge has ruled the law unconstitutional. Many observers think Hudson will be the first. That prediction is built partly on Hudson's roots in Republican politics. He was elected Arlington's commonwealth attorney as a Republican, briefly ran against U.S. Rep. James P. Moran (D-Va.) in 1991 and has received all of his appointments - as U.S. attorney, as a Fairfax County Circuit Court judge in 1998 and to the federal bench in 2002 - from Republicans…In the 1980s, President Reagan appointed him chairman of the Meese Commission, a controversial group that investigated the effects of pornography… In the 1990s, Hudson had his own radio show and made regular appearances as a television legal analyst. He was a frequent guest of television host Greta Van Susteren, who as a young law school student worked for Hudson while he was a prosecutor.
He also has stated that he believes personal relationships have driven his career more than his intellectual ability to serve as a justice. Judge Hudson has previously said “The progression of my life has been a calculated one. Merit plays a role, but you have to know the right people and be at the right place at the right time.” He continued “The jobs I’ve had have been with a little help from my friends. And that’s the way it is in politics. I went out of my way to go over to Capitol Hill, meet with Congress. It really paid dividends. They treated me extremely well.”
Now it appears Judge Hudson is returning the favor to the Republican Party and President George W. Bush who elevated him to the position he is in now.
Certainly, when judged on the merits, Judge Hudson’s ruling is roundly seen as flawed. UCLA legal scholar Eugene Volokh, points out that Judge Hudson has a fundamental misunderstanding of the Necessary and Proper clause which he used to render his decision. In a blog entry titled “The Significant Error in Judge Hudson’s Opinion” Professor Volokh says:
Judge Hudson does not cite any authority for this conclusion ("that the power granted to Congress by the Necessary and Proper Clause — “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” — does not expand Congress’s power beyond the Commerce Clause itself"): He seems to believe it is required by logic. But it is incorrect. The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that’s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way.Judge Hudson’s fundamentally flawed ruling stands in stark contrast to the pattern of legal decisions accumulating in support of the Affordable Care Act. Prior to Monday’s decision all 14 lawsuits regarding the Affordable Care Act have been found in favor of the legislation. Below is a list of the findings:
1. Sollars v. Reid -dismissed 4/2/10
2. Taitz v. Obama - dismissed 4/14/10
3. Archer v. U.S. Senate - dismissed 4/12/10
4. Heghmann v. Sebelius - dismissed 5/14/10
5. Mackenzie v. Shaheen - dismissed 5/26/10
6. Fountain Hills Tea Party Patriots v. Sebelius - dismissed 6/2/10
7. Coalition for Parity Inc. v. Sebelius - dismissed on 6/21/10
8. U.S. Citizens Association v. OMB - dismissed 8/2/10
9. Baldwin v. Sebelius – dismissed 8/27/10
10. Burlsworth v. Holder - dismissed 9/8/10
11. Schreeve v. Obama - dismissed 11/4/10
12. New Jersey Physicians Inc. v. Obama - dismissed 11/8/10
13. Liberty University v. Geithner - dismissed 12/1/10
14. Thomas More Law Center v. Obama - dismissed 10/22/10
In the face of growing judicial support for the legislation, Campaign Solution’s owner Henry Hudson issued his decision. Now, despite the fundamentally flawed and ethically questionable ruling, the Republican Party has a favorable judgment to push to the Supreme Court. Their ability to get one favorable ruling was in heavy doubt, because, as mentioned, 14 straight cases had ruled against their political interests. Now that the Republican Party has a ruling courtesy of their appointed Republican judge, they can use this case to fuel a public relations and legal campaign against the Affordable Care Act all the way to the Supreme Court.
It is in this light that last week’s revelations about Fox News are particularly troublesome. Specifically I’m speaking about the revelations by Media Matters that the supposedly neutral news division of the Fox News media empire had been taking cues from Republican pollster Frank Luntz about how to speak about, and defeat, the public option. As leaked emails show, Bill Sammon, Fox News’ Washington managing editor, directed journalists not to use the phrase “public option” an instead invoke the phrase “government option”, which was shown to be overwhelmingly opposed by Americans when polled. Fox News executives, in coordination with Republican operatives, framed the ongoing debate to sway public opinion in favor of the position staked out by the Republican Party.
Just today, we are finding out that Mr. Sammon issued a similar directiveto his journalists on how to cast doubt on climate science. According to Media Matters:
In the midst of global climate change talks last December, a top Fox News official sent an email questioning the "veracity of climate change data" and ordering the network's journalists to "refrain from asserting that the planet has warmed (or cooled) in any given period without IMMEDIATELY pointing out that such theories are based upon data that critics have called into question."Have we really slipped this far? Are we willing to watch our journalistic and judicial standards fall before our eyes?
We see a growing pattern of distortion from Fox News on issues vital to the American people, and there is every reason to believe that they will conduct a similar coordinated campaign against the Affordable Care Act again. One lesson from last year’s health care debate is that the political right does not operate by accident. From the wording of news stories on Fox News to the unethical judicial procedures pursued against the Affordable Care Act, there are no happy coincidences in the political right’s attempt to dismantle health care reform.
We must not let this injustice stand. As you can see, there has already been a lot of reporting among bloggers about Judge Hudson’s improper actions on the bench. I encourage all readers to continue to educate their friends, colleagues, and those in the mainstream media about this egregious attack on our judicial system and our nation’s liberty. If you need support in convincing them, please reach out to my office and I am happy to share all that I just shared here. We must be vigilant in fighting these attacks by the political right, and defend the consumer protections guaranteed by the Affordable Care Act and the neutrality and integrity of our justice system.
I can be reached at www.louise.house.gov or at any of my district offices in New York State and Washington, DC.