Judge shopping strategy pays off for opponents of Affordable Care Act

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Posted by AzBlueMeanie:

This story is the intersection between Republican presidents having stacked the federal judiciary with conservative activist judges (like John Roberts) over the years with billionaire-funded conservative think tanks that provide full employment for Federalist Society lawyers to bring "junk lawsuits" on frivolous constitutional grounds to advance conservative causes. Working together in tandem they are "reinterpreting" the U.S. Constitution and the rules of law as they create the brave new world of the corporatocracy.

The legal strategy by opponents (AHIP, The Chicoms Chamber of Commerce, politically ambitious Republican state attorneys general) of the Affordable Care Act to file multiple lawsuits in multiple jurisdictions for the purpose of judge shopping in the hopes of drawing a conservative activist judge to rule in their favor finally paid off today. Their ultimate goal is a conflict among the circuit courts of appeal which will land the case in front of the conservative activist U.S. Supreme Court. Virginia Judge Finds Individual Mandate Unconstitutional:

Moments ago, a district judge in Virginia ruled that the Affordable Care Act’s individual requirement to purchase health care coverage violated the Commerce Clause of the Constitution, but did not issue an injunction baring enforcement of the provision. “The power of Congress to regulate a class of activities that in the aggregate has a substantial and direct effect on interstate commerce is well settled,” Judge Henry Hudson — a George W. Bush appointee — writes in the ruling, before adding, “but these regulatory powers are triggered by some type of self-initiated action”:  

Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article 1.

Because an individual’s personal decision to purchase — or decline to purchase — health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary. …The Minimum Essential Coverage Provision is neither within the letter nor the spirit

The opinion represents a victory for Virginia Attorney General Ken Cuccinelli (R), but the decision stands alone within the broader context of existing court challenges. Since President Obama signed health reform into law on March 23, opponents have filed at least 20 separate suits against the legislation. Federal judges have dismissed 14 of these challenges, and at least two separate judges disagreed with Hudson’s interpretation and questioned the merit of the plaintiffs’ claim that compelling individuals to purchase insurance fell outside the purview of the Commerce Clause. As Judge George Caram Steeh of the Eastern District of Michigan put it in October, forgoing insurance and putting off needed care only increases the costs of coverage and raises everyone’s premiums:

There is a rational basis to conclude that, in the aggregate, decisions to forego insurance coverage in preference to attempting to pay for health care out of pocket drive up the cost of insurance. The costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers. The decision whether to purchase insurance or to attempt to pay for health care out of pocket, is plainly economic. These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance. These are the economic effects addressed by Congress in enacting the Act and the minimum coverage provision.

To be sure, the legal fight is far from over. Hudson’s ruling will be appealed to the 4th Circuit U.S. Court of Appeals and may even [will eventually] end up before the Supreme Court. Appeals are also pending in other circuits and a federal judge will hear arguments Thursday in a challenge brought by a coalition of 20 state attorneys general led by Florida’s Bill McCollum (R). [This is the main legal challenge.]

Steve Benen at The Washington Monthly has more on this judge shopping legal strategy:

MEET JUDGE HENRY HUDSON…. Federal district court Judge Henry Hudson ruled the way conservatives wanted him to earlier today, finding the individual mandate in the Affordable Care Act to be unconstitutional. Republicans are applauding the outcome, which will be appealed, and which declares unconstitutional an idea they came up with in the first place.

It's worth pausing to note why Virginia's hyper-conservative attorney general, Ken Cuccinelli (R), hoped Hudson would hear this case, and why health care reform advocates expected this outcome.

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. […]

It is somewhat unusual for a federal judge to give an interview in the midst of a major case. But Hudson has always been known for his willingness to step into the public light.

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. 

Under the circumstances, today's ruling wasn't exactly a shocker.

Update: On the other hand, it's only fair to note Hudson did show some restraint. His ruling, for example, rejected the plaintiff's request to block implementation of the law, and more importantly, refused to go along with a push to find the entire Affordable Care Act unconstitutional. Instead, he targeted the mandate exclusively, reassuring some reform proponents.

UPDATE: District Court Judge Henry E. Hudson has financial ties to both the attorney general who is challenging the law and to a powerhouse conservative law firm whose clients include prominent Republican officials and critics of health care reform. Henry Hudson, Judge In Health Care Lawsuit, Has Financial Ties To Attorney General Bringing The Case:

From 2003 through 2008, Hudson has been receiving "dividends" from Campaign Solutions Inc., among other investments. In 2008, he reported income of between $5,000 and $15,000 from the firm. (Data from 2009 was not available at the Judicial Watch database.)

A powerhouse Republican online communications firm, Campaign Solutions Inc., 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). The president of the firm, Becki Donatelli, is the wife of longtime GOP hand Frank Donatelli, and is an adviser toformer Alaska Gov. Sarah Palin, among others.

Another firm client is Ken 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.

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The nexus between the chief lawyer and the judge spurs questions about judicial objectivity. At the very least, it shows how tightly connected the legal and political worlds can be and how difficult it is to remove the partisan threads from the heath care related lawsuits.

Campaign Solutions, Inc. sent over the following statement detailing Hudson's investment in the firm.

Judge Hudson has owned stock in Campaign Solutions going back 13 years to the founding of the company or well before he became a federal judge. Since joining the federal bench, he has fully disclosed his stock ownership in the company. He is a passive investor only, has no knowledge of the day to day operations of the firm, and has never discussed any aspect of the business with any official of the company.

1 COMMENT

  1. I am referring to the broad intersection between corporate interests and conservative political interests through conservative judicial activism — this would include abominations like Citizens United v. FEC.

    AHIP and the Chamber are fighting the Affordable Care Act because they see it as the first step towards a single-payer national health care system that would supplant health insurance companies and increase government regulation over health care providers and suppliers — largely corporate interests. Big picture, Dude.

  2. I find it puzzling how you determine that Judge Hudson is advancing corporatocracy when he finds in favor of the right of individuals to not buy health insurance (which last I looked is usually sold by corporations).