So the "big" story is that a district court judge has ruled that health care reform's individual mandate is unconstitutional, dealing reform a Massively Major Blow. That must mean the "little" story is that in fourteen previous cases, judges have either dismissed cases against the law's constitutionality or ruled against those cases. From the White House comes this roster of some of the rejected cases:
Sollars v. Reid -dismissed 4/2/10
Taitz v. Obama - dismissed 4/14/10
Archer v. U.S. Senate - dismissed 4/12/10
Heghmann v. Sebelius - dismissed 5/14/10
Mackenzie v. Shaheen - dismissed 5/26/10
Fountain Hills Tea Party Patriots v. Sebelius - dismissed 6/2/10
Coalition for Parity Inc. v. Sebelius - dismissed on 6/21/10
U.S. Citizens Association v. OMB - dismissed 8/2/10
Baldwin v. Sebelius – dismissed 8/27/10
Burlsworth v. Holder - dismissed 9/8/10
Schreeve v. Obama - dismissed 11/4/10
And if those cases represent the little story, then the puny story must be that in two previous cases a federal judge has ruled that the individual mandate is perfectly constitutional.
But because of today's ruling, in which a conservative judge appointed by George W. Bush became the first magistrate to rule against the individual mandate, conservatives are rejoicing about the demise (caveat: in the Eastern District of Virginia until the case is overturned on appeal) of a provision they once supported. Orrin Hatch, today:
Today is a great day for liberty.
And yet in the 1990s, he supported the individual mandate that he now laments. Hatch explains his flip flop:
We were fighting Hillarycare at that time. And I don't think anyone centered on it, I certainly didn't. That was 17 years ago.
Et tu, Mitt Romney?
To be fair, some conservatives are rating this decision as bogus. Nonetheless, this would be a wise time for defenders of health care reform to start fighting for a public option, otherwise the entire reform debate will focus on this court case. And in addition to the political reasons, there's a legal rationale: a public option, such as Medicare buy-in, would make the legal case moot.
That said, even if a public option isn't forthcoming, this ruling does appear to be on quite shaky ground. Greg Sargent reports that a legal expert thinks the ruling won't stand:
But Tim Jost, a professor of law at the Washington and Lee University Law School, dismissed this argument, deriding it as a fundamental misreadling of the Constitution and claiming that the judge has "rewritten the Commerce Clause."
Jost, who spoke to reporters on a conference call organized by the pro-health reform Center of American Progress, accused Hudson of an overly narrow reading of the Commerce Clause. He said the judge's reading turned on the idea that the Commerce Clause only focuses on regulating economic activity, when in fact it also empowers Congress to regulate economic decisions that are "not immediately classifable as activity."
The Commerce Clause, Jost said, "really turns on economic decisions." By this Jost means that the Commerce Clause empowers Congress to step in and regulate when Americans fail to participate in economic activity in a way that impacts interstate commerce.
Of course, even if Jost ends up being right, the Hudson's decision will convince the right for evermore that health care reform's individual mandate is unconstitutional, no matter how many of their leaders once supported such a mandate.