Dean argued that Hudson's ruling was basically irrelevant, pointing out that the judge found the individual mandate was severable from the rest of the legislation and arguing that it wasn't essential for health care reform to work because there are other ways to prevent free riders. For example, Dean said there could be enrollment periods for health care plans, and that anyone who doesn't enroll during an enrollment period would be responsible for all health costs incurred outside the enrollment period. He acknowledged that mandates were a more effective way of preventing free riders, but his point was that it would be possible to make the bill work even in the unlikely scenario that Hudson's ruling is upheld.
Transcript below the fold.
OLBERMANN: Finally, the right finds someone willing to take its side on health care reform. After two judges ruled to uphold it, and 14 dismissed challenges to it, a district judge out of Virginia rules part of the Affordable Care Act unconstitutional. In our third story, he just happens to own part of a Republican strategy firm that advocated against health care reform. The company, which took 9,000 dollars this year from one of its clients, the attorney general who filed the case on which this judge just ruled.
U.S. District Judge Henry E. Hudson, a George W. Bush appointee, ruling against the individual mandate, arguing that requiring citizens to either buy health insurance or pay a fine, quote, "exceeds the constitutional boundary of Congressional power."
"At its core," he continued, "this dispute is not simply about regulating the business of insurance, or crafting a scheme of universal health insurance coverage; it`s about an individual`s right to choose to participate."
It`s the first time a judge has ruled against the law since the president signed it in March. Mr. Obama dismissing the ruling as par for the course.
(BEGIN VIDEO CLIP)
BARACK OBAMA, PRESIDENT OF THE UNITED STATES: That`s the nature of these things. You know, when Social Security was passed, there were all kinds of lawsuits. When the Civil Rights Act was passed and the Voting Rights Act was passed, there were all kinds of lawsuits.
(END VIDEO CLIP)
OLBERMANN: While the GOP is now calling for the Supreme Court to get involved as soon as possible. Democratic chair of the House HELP Subcommittee Pete Stark noting, "apparently Republicans are now for judicial activism after they were against it."
To that point, Judge Hudson`s financial disclosure firm shows he owns a hefty chunk of a Republican consulting firm, Campaign Solutions Inc. The firm has helped work against health care reform. The Associate Press reporting that the firm`s head, Rebecca Donatelli (ph), characterize Hudson as a passive investor who has owned stock for the past 13 years. Ms. Donatelli says Judge Hudson had no knowledge of the firm`s day to day operations.
Meanwhile, the website "Gawker" reporting that the firm`s clients are some of the health care reform`s biggest critics, Speaker Designate John Boehner, Senator John McCain, Congresswoman Bachmann. Campaign Solutions also key in launching the PAC of Alaska`s half term governor, although the two have since parted ways.
Another client, Ken Cuccinelli of Virginia, paid Campaign Solutions 9,000 dollars for, quote, services rendered this year. Mr. Cuccinelli also happens to be the attorney general of Virginia. That`s the man who would file the lawsuit that Judge Hudson happened to rule in favor of today.
Time now to call in the former chairman of the DNC, now a CNBC contributor and a consultant to McKenna, Long and Aldridge (ph), as well as Democracy for America, former Governor of Vermont Howard Dean. Good evening, sir.
HOWARD DEAN, FORMER GOVERNOR OF VERMONT: Thank you, Keith.
OLBERMANN: So one judge says part of this law is unconstitutional. What are the implications?
DEAN: Well, first of all, I have to note that Attorney General Cuccinelli also sent out a fund-raiser about two hours after the decision.
OLBERMANN: Of course.
DEAN: This is kind of embarrassing for Virginia. You know, you have a judge that`s investing in an election thing, and the attorney general is clearly using this for fund-raising. It`s kind of unfortunate for the state.
So what does this mean? Nothing. First of all, the judge -- the suspect judge is in the minority. There will be other suits and other decisions. And it will wind its way to the appeals court, despite the fact that the Republicans want to take it to the Supreme Court and all that stuff.
Secondly, it doesn`t matter, because the truth is you don`t need the individual mandate to make this work. We`ve had universal health insurance for kids for almost 20 years in Vermont, kids under 18. There`s no individual mandate; 96 percent of them have health insurance, one percent`s not legible for the program, and three percent don`t get it. Even if we had a mandate, they wouldn`t get it.
About 96 percent of al the people in Massachusetts under Mitt Romney`s plan have insurance. They do have an individual mandate. So four percent don`t abide by it. So the individual mandate -- I get into arguments with people in the administration about this, but the fact is you can make this program work with or without the individual mandate.
Now, you know, I understand the administration wants this to succeed, and wants no part of it to be overturned. This is probably the weakest part of attacking health care, because it really doesn`t matter how the outcome is at the end of the day.
OLBERMANN: The other argument is that without the mandate, without healthy people being forced to pay in, that this is going to be far more expensive, and all the cost savings of health care reform goes out the window?
DEAN: That`s complete nonsense. People who really like the individual mandate are the insurance companies, because it forces them to get -- it forces 30 million more people into their clutches. But the fact of the matter is most Americans are responsible. If you`re -- and the most irresponsible group are the young folks, who are under 26, and they`re taken care of, because they can now be on their parents` policy.
You don`t get a lot of people with kids, houses and mortgages saying, we`re not going to buy health insurance. They know that it could make them bankrupt. There are ways around the individual mandate. All you have to do is have a sign up period, and say, if you don`t sign up when you`re supposed to, then you don`t get health insurance, and then you`re fully liable for all the costs.
Even young people, who don`t have other responsibilities, are not going to want to have their car, or their Harley-Davidson repossessed because they get into trouble because they didn`t get health insurance. So there`s other ways of doing this without the mandate.
You know, I think that the president -- the mandate is a little more perfect, but it`s not absolutely necessary at all. And what we`ve done in Vermont and what they`ve done in Massachusetts has shown that.
OLBERMANN: Is there a chance that if this were to go all the way to the Supreme Court, and -- on a conservative five to four vote, it was -- Judge Hudson`s decision was upheld, that this could knock down the entire reform bill, because of severability, this issue that most legislation includes sort of carve-outs -- if the courts throw this part of it out, the rest of the bill is still in tact, but apparently that`s not the case with health care reform?
DEAN: Well, even Judge Hudson didn`t rule that, at least not in the reports that I saw. He ruled that it was, in fact, severable. And it did not invalidate the whole health care thing. Now this court is incredibly activist. They`ve been known to make up the law before. I have not yet to find anywhere in the Constitution where a corporation is a person.
So anything could happen in this Supreme Court, whether it`s constitutional or not. But the fact is, even this judge, with all these conflicts and so forth and so on, found that it was severable.
OLBERMANN: To get back for a moment to this -- the appearance of this judge owning part of a consulting firm that lobbied against reform, and that consulting firm being -- having as a client the attorney general who was appearing in front of him. Whether or not there is some legal explanation for why that shouldn`t cause everybody involved in the process to go to prison for a few hours, how bad does that look? Why is that not considered sort of a de facto -- an automatic, an immediate appearance of conflict of interest?
DEAN: It`s interesting. About two weeks ago, I, along with a number of Democrats and Republicans, sat down to meet with the leadership of the Chinese communist party. I find it very hard to lecture the Chinese on the rule of law when this kind of stuff is going on in our country. It`s not just this guy who has a piece of the action fighting the health care bill, and then decides against it from the bench.
What about all the elected judges that are taking money from the Chamber of Commerce and then hearing their cases and finding in their favor? I mean, we have a lot of problems with the rule of law right here in America. And you just outlined one.
OLBERMANN: Yeah, we`re doing a tremendous job of re-creating the year 1895 in this country. Governor Howard Dean, always a pleasure, thanks for your time tonight.
DEAN: Thanks, Keith.