Judge in Va. Strikes Down Federal Health Care Law – BO’s Nov.2nd Nightmare Continues

Judge in Va. Strikes Down Federal Health Care Law
Federal judge in Va. rules against Obama administration’s health care law as unconstitutional

Key Part of ruling:
The central issue in Virginia’s lawsuit was whether the federal government has the power under the constitution to impose the insurance requirement. The Justice Department said the mandate is a proper exercise of the government’s authority under the Commerce Clause.

Cuccinelli argued that while the government can regulate economic activity that substantially affects interstate commerce, the decision not to buy insurance amounts to economic inactivity that is beyond the government’s reach.

Read it all here:
http://abcnews.go.com/Business/wireStory?id=12382839

16 Comments

  1. I like this. With the other requirements, yet no mandate, insurance companies will go belly up. The resulting cluster will produce something better than we have, or even what the HCR could have done on its own.

  2. It isn’t health insurance companies that will go belly up, they provide a needed service at reasonable prices. The free market proves people want health insurance, it’s OamaCare that threatens the health and well-being of Americans, and the sooner it’s repealed the healthier we’ll all be in the purity of our precious bodily fluids.

  3. The judge in this case severed Section 1501 from the law and left the rest almost intact, unless it relied on 1501. Sec. 1501 was the mandate to buy insurance under Commerce Clause. The judge said if insurance is not bought, there is no commerce, therefore the Commerce Clause Does not apply and the penalties with it.

  4. Nangleator wrote:

    I like this. With the other requirements, yet no mandate, insurance companies will go belly up. The resulting cluster will produce something better than we have, or even what the HCR could have done on its own.

    Except that the Distinguished Gentlemen somehow removed the usual severability clause, the part that normally holds that if one part of a stature is invalidated by the courts, the rest remain legal. According to The New York Times:

    Mr. Cuccinelli and the plaintiffs in the Florida case, who include attorneys general or governors from 20 states, have emphasized that Congressional bill writers did not include a “severability clause” that would explicitly protect other parts of the sprawling law if certain provisions were struck down.

    An earlier version of the legislation, which passed the House last November, included severability language. But that clause did not make it into the Senate version, which ultimately became law. A Democratic aide who helped write the bill characterized the omission as an oversight.

    Thus, not only is the severability clause not in the law, it was specifically removed by the Senate; calling something specifically removed “an oversight” hardly strikes me as reasonable. And since the House bill originally had severability, it was removed in the Senate, and then the Senate bill was passed by the House, the House members, in effect, specifically agreed to the removal of severability.

    Without such language, the Supreme Court, through its prior rulings, essentially requires judges to try to determine whether Congress would have enacted the rest of a law without the unconstitutional provisions.

    The Justice Department, which represents the Obama administration, acknowledges that several of the law’s central provisions, like the requirement that insurers cover those with pre-existing conditions, cannot work unless both the healthy and the unhealthy are mandated to have insurance. Otherwise, consumers could simply buy coverage when they needed treatment, causing the insurance market to “implode,” the federal government asserts.

    There’s really no disagreement that the law cannot work without the individual mandate, a point with which you agreed yourself.

    It’ll go to the Supreme Court, and the Administration will probably request an accelerated hearing schedule, which means that it’ll go when we still have the current Justices on the Court; they’ll want it decided before President Palin’s inauguration, anyway, before she can direct the Justice Department to reverse its position in support of the law. :)

    This could be the best result possible. The Republicans ran on a platform of repealing ObaminableCare, but they still don’t have the seats to do it; the Senate won’t go along, and even if it did, President Obama would veto it. The best that the Republicans can do is decline to pass any funding to implement those parts passed which take effect in FY2012 or 2013, which is what I think that they’ll do. And when the Supreme Court invalidates the whole thing, the Republicans still won’t have to worry about voting against some of the parts which are popular.

    In other words, with a little luck, we really can reverse the worst part of the 2008 election! :)

  5. Yorkshire brings up a very good point. Judge Hudson goes into his rational to sever by succinctly stating that the legislation was so long (i beleive he cited “2700 pages”) that he could not with any certaintly know the impact of the entire legislation. Since 1501 was the only issue at hand (and NOT the economic impact, the entire legislation, the need, etc.), he smartly only dealt with 1501. That is why he severed.

    I also enjoyed the arguments presented about a tax vs. a penalty. Good stuff. Also some good snark about Sebelius’ arguments sidestepping issues.

  6. No Severability Clause in the Healthscare Bill – Didn’t exist in the Senate Bill due to haste to pass it. Big, big error.

    http://www.nytimes.com/2010/11/27/us/politics/27health.html

    Mr. Cuccinelli and the plaintiffs in the Florida case, who include attorneys general or governors from 20 states, have emphasized that Congressional bill writers did not include a “severability clause” that would explicitly protect other parts of the sprawling law if certain provisions were struck down.

    An earlier version of the legislation, which passed the House last November, included severability language. But that clause did not make it into the Senate version, which ultimately became law. A Democratic aide who helped write the bill characterized the omission as an oversight.

    The latest on President Obama, the new Congress and other news from Washington and around the nation. Without such language, the Supreme Court, through its prior rulings, essentially requires judges to try to determine whether Congress would have enacted the rest of a law without the unconstitutional provisions.

  7. What was found unconstitutional:

    Subtitle F—Shared Responsibility for
    Health Care
    PART I—INDIVIDUAL RESPONSIBILITY
    SEC. 1501. REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.
    (a) FINDINGS.—Congress makes the following findings:
    (1) IN GENERAL.—The individual responsibility requirement
    provided for in this section (in this subsection referred to as
    the ‘‘requirement’’) is commercial and economic in nature, and
    substantially affects interstate commerce, as a result of the
    effects described in paragraph (2).
    42 USC 18091.
    Applicability.
    26 USC 38 note.
    26 USC 38.
    VerDate Nov 24 2008 03:39 May 07, 2010 Jkt 089139 PO 00148 Frm 00124 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL148.111 GPO1 PsN: PUBL148 dkrause on GSDDPC29PROD with PUBLIC LAWS
    PUBLIC LAW 111–148—MAR. 23, 2010 124 STAT. 243
    (2) EFFECTS ON THE NATIONAL ECONOMY AND INTERSTATE
    COMMERCE.—The effects described in this paragraph are the
    following:
    (A) The requirement regulates activity that is commercial
    and economic in nature: economic and financial
    decisions about how and when health care is paid for,
    and when health insurance is purchased.
    (B) Health insurance and health care services are a
    significant part of the national economy. National health
    spending is projected to increase from $2,500,000,000,000,
    or 17.6 percent of the economy, in 2009 to
    $4,700,000,000,000 in 2019. Private health insurance
    spending is projected to be $854,000,000,000 in 2009, and
    pays for medical supplies, drugs, and equipment that are
    shipped in interstate commerce. Since most health insurance
    is sold by national or regional health insurance companies,
    health insurance is sold in interstate commerce and
    claims payments flow through interstate commerce.
    (C) The requirement, together with the other provisions
    of this Act, will add millions of new consumers to the
    health insurance market, increasing the supply of, and
    demand for, health care services. According to the Congressional
    Budget Office, the requirement will increase the
    number and share of Americans who are insured.
    (D) The requirement achieves near-universal coverage
    by building upon and strengthening the private employerbased
    health insurance system, which covers 176,000,000
    Americans nationwide. In Massachusetts, a similar requirement
    has strengthened private employer-based coverage:
    despite the economic downturn, the number of workers
    offered employer-based coverage has actually increased.
    (E) Half of all personal bankruptcies are caused in
    part by medical expenses. By significantly increasing health
    insurance coverage, the requirement, together with the
    other provisions of this Act, will improve financial security
    for families.
    (F) Under the Employee Retirement Income Security
    Act of 1974 (29 U.S.C. 1001 et seq.), the Public Health
    Service Act (42 U.S.C. 201 et seq.), and this Act, the Federal
    Government has a significant role in regulating health
    insurance which is in interstate commerce.
    (G) Under sections 2704 and 2705 of the Public Health
    Service Act (as added by section 1201 of this Act), if there
    were no requirement, many individuals would wait to purchase
    health insurance until they needed care. By significantly
    increasing health insurance coverage, the requirement,
    together with the other provisions of this Act, will
    minimize this adverse selection and broaden the health
    insurance risk pool to include healthy individuals, which
    will lower health insurance premiums. The requirement
    is essential to creating effective health insurance markets
    in which improved health insurance products that are
    guaranteed issue and do not exclude coverage of preexisting
    conditions can be sold.
    (H) Administrative costs for private health insurance,
    which were $90,000,000,000 in 2006, are 26 to 30 percent
    of premiums in the current individual and small group
    VerDate Nov 24 2008 03:39 May 07, 2010 Jkt 089139 PO 00148 Frm 00125 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL148.111 GPO1 PsN: PUBL148 dkrause on GSDDPC29PROD with PUBLIC LAWS
    124 STAT. 244 PUBLIC LAW 111–148—MAR. 23, 2010
    markets. By significantly increasing health insurance coverage
    and the size of purchasing pools, which will increase
    economies of scale, the requirement, together with the other
    provisions of this Act, will significantly reduce administrative
    costs and lower health insurance premiums. The
    requirement is essential to creating effective health insurance
    markets that do not require underwriting and eliminate
    its associated administrative costs.

    (3) SUPREME COURT RULING.—In United States v. South-
    Eastern Underwriters Association (322 U.S. 533 (1944)), the
    Supreme Court of the United States ruled that insurance is
    interstate commerce subject to Federal regulation.

    (b) IN GENERAL.—Subtitle D of the Internal Revenue Code
    of 1986 is amended by adding at the end the following new chapter:
    ‘‘CHAPTER 48—MAINTENANCE OF MINIMUM ESSENTIAL
    COVERAGE
    ‘‘Sec. 5000A. Requirement to maintain minimum essential coverage.
    ‘‘SEC. 5000A. REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.
    ‘‘(a) REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.—
    An applicable individual shall for each month beginning
    after 2013 ensure that the individual, and any dependent of the
    individual who is an applicable individual, is covered under minimum
    essential coverage for such month.
    ‘‘(b) SHARED RESPONSIBILITY PAYMENT.—
    ‘‘(1) IN GENERAL.—If an applicable individual fails to meet
    the requirement of subsection (a) for 1 or more months during
    any calendar year beginning after 2013, then, except as provided
    in subsection (d), there is hereby imposed a penalty
    with respect to the individual in the amount determined under
    subsection (c).
    ‘‘(2) INCLUSION WITH RETURN.—Any penalty imposed by
    this section with respect to any month shall be included with
    a taxpayer’s return under chapter 1 for the taxable year which
    includes such month.
    ‘‘(3) PAYMENT OF PENALTY.—If an individual with respect
    to whom a penalty is imposed by this section for any month—
    ‘‘(A) is a dependent (as defined in section 152) of
    another taxpayer for the other taxpayer’s taxable year
    including such month, such other taxpayer shall be liable
    for such penalty, or
    ‘‘(B) files a joint return for the taxable year including
    such month, such individual and the spouse of such individual
    shall be jointly liable for such penalty.
    ‘‘(c) AMOUNT OF PENALTY.—
    ‘‘(1) IN GENERAL.—The penalty determined under this subsection
    for any month with respect to any individual is an
    amount equal to 1?12 of the applicable dollar amount for the
    calendar year.
    ‘‘(2) DOLLAR LIMITATION.—The amount of the penalty
    imposed by this section on any taxpayer for any taxable year
    with respect to all individuals for whom the taxpayer is liable
    under subsection (b)(3) shall not exceed an amount equal to
    300 percent the applicable dollar amount (determined without
    Penalty.
    26 USC 5000A.
    VerDate Nov 24 2008 03:39 May 07, 2010 Jkt 089139 PO 00148 Frm 00126 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL148.111 GPO1 PsN: PUBL148 dkrause on GSDDPC29PROD with PUBLIC LAWS
    PUBLIC LAW 111–148—MAR. 23, 2010 124 STAT. 245
    regard to paragraph (3)(C)) for the calendar year with or within
    which the taxable year ends.
    ‘‘(3) APPLICABLE DOLLAR AMOUNT.—For purposes of paragraph
    (1)—
    ‘‘(A) IN GENERAL.—Except as provided in subparagraphs
    (B) and (C), the applicable dollar amount is $750.
    ‘‘(B) PHASE IN.—The applicable dollar amount is $95
    for 2014 and $350 for 2015.
    ‘‘(C) SPECIAL RULE FOR INDIVIDUALS UNDER AGE 18.—
    If an applicable individual has not attained the age of
    18 as of the beginning of a month, the applicable dollar
    amount with respect to such individual for the month shall
    be equal to one-half of the applicable dollar amount for
    the calendar year in which the month occurs.
    ‘‘(D) INDEXING OF AMOUNT.—In the case of any calendar
    year beginning after 2016, the applicable dollar amount
    shall be equal to $750, increased by an amount equal
    to—
    ‘‘(i) $750, multiplied by
    ‘‘(ii) the cost-of-living adjustment determined
    under section 1(f)(3) for the calendar year, determined
    by substituting ‘calendar year 2015’ for ‘calendar year
    1992’ in subparagraph (B) thereof.
    If the amount of any increase under clause (i) is not a
    multiple of $50, such increase shall be rounded to the
    next lowest multiple of $50.
    ‘‘(4) TERMS RELATING TO INCOME AND FAMILIES.—For purposes
    of this section—
    ‘‘(A) FAMILY SIZE.—The family size involved with
    respect to any taxpayer shall be equal to the number of
    individuals for whom the taxpayer is allowed a deduction
    under section 151 (relating to allowance of deduction for
    personal exemptions) for the taxable year.
    ‘‘(B) HOUSEHOLD INCOME.—The term ‘household
    income’ means, with respect to any taxpayer for any taxable
    year, an amount equal to the sum of—
    ‘‘(i) the modified gross income of the taxpayer,
    plus
    ‘‘(ii) the aggregate modified gross incomes of all
    other individuals who—
    ‘‘(I) were taken into account in determining
    the taxpayer’s family size under paragraph (1),
    and
    ‘‘(II) were required to file a return of tax
    imposed by section 1 for the taxable year.
    ‘‘(C) MODIFIED GROSS INCOME.—The term ‘modified
    gross income’ means gross income—
    ‘‘(i) decreased by the amount of any deduction
    allowable under paragraph (1), (3), (4), or (10) of section
    62(a),
    ‘‘(ii) increased by the amount of interest received
    or accrued during the taxable year which is exempt
    from tax imposed by this chapter, and
    ‘‘(iii) determined without regard to sections 911,
    931, and 933.
    ‘‘(D) POVERTY LINE.—
    VerDate Nov 24 2008 03:39 May 07, 2010 Jkt 089139 PO 00148 Frm 00127 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL148.111 GPO1 PsN: PUBL148 dkrause on GSDDPC29PROD with PUBLIC LAWS
    124 STAT. 246 PUBLIC LAW 111–148—MAR. 23, 2010
    ‘‘(i) IN GENERAL.—The term ‘poverty line’ has the
    meaning given that term in section 2110(c)(5) of the
    Social Security Act (42 U.S.C. 1397jj(c)(5)).
    ‘‘(ii) POVERTY LINE USED.—In the case of any taxable
    year ending with or within a calendar year, the
    poverty line used shall be the most recently published
    poverty line as of the 1st day of such calendar year.
    ‘‘(d) APPLICABLE INDIVIDUAL.—For purposes of this section—
    ‘‘(1) IN GENERAL.—The term ‘applicable individual’ means,
    with respect to any month, an individual other than an individual
    described in paragraph (2), (3), or (4).
    ‘‘(2) RELIGIOUS EXEMPTIONS.—
    ‘‘(A) RELIGIOUS CONSCIENCE EXEMPTION.—Such term
    shall not include any individual for any month if such
    individual has in effect an exemption under section
    1311(d)(4)(H) of the Patient Protection and Affordable Care
    Act which certifies that such individual is a member of
    a recognized religious sect or division thereof described
    in section 1402(g)(1) and an adherent of established tenets
    or teachings of such sect or division as described in such
    section.
    ‘‘(B) HEALTH CARE SHARING MINISTRY.—
    ‘‘(i) IN GENERAL.—Such term shall not include any
    individual for any month if such individual is a member
    of a health care sharing ministry for the month.
    ‘‘(ii) HEALTH CARE SHARING MINISTRY.—The term
    ‘health care sharing ministry’ means an organization—
    ‘‘(I) which is described in section 501(c)(3) and
    is exempt from taxation under section 501(a),
    ‘‘(II) members of which share a common set
    of ethical or religious beliefs and share medical
    expenses among members in accordance with those
    beliefs and without regard to the State in which
    a member resides or is employed,
    ‘‘(III) members of which retain membership
    even after they develop a medical condition,
    ‘‘(IV) which (or a predecessor of which) has
    been in existence at all times since December 31,
    1999, and medical expenses of its members have
    been shared continuously and without interruption
    since at least December 31, 1999, and
    ‘‘(V) which conducts an annual audit which
    is performed by an independent certified public
    accounting firm in accordance with generally
    accepted accounting principles and which is made
    available to the public upon request.
    ‘‘(3) INDIVIDUALS NOT LAWFULLY PRESENT.—Such term shall
    not include an individual for any month if for the month the
    individual is not a citizen or national of the United States
    or an alien lawfully present in the United States.
    ‘‘(4) INCARCERATED INDIVIDUALS.—Such term shall not
    include an individual for any month if for the month the individual
    is incarcerated, other than incarceration pending the
    disposition of charges.
    ‘‘(e) EXEMPTIONS.—No penalty shall be imposed under subsection
    (a) with respect to—
    ‘‘(1) INDIVIDUALS WHO CANNOT AFFORD COVERAGE.—
    VerDate Nov 24 2008 03:39 May 07, 2010 Jkt 089139 PO 00148 Frm 00128 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL148.111 GPO1 PsN: PUBL148 dkrause on GSDDPC29PROD with PUBLIC LAWS
    PUBLIC LAW 111–148—MAR. 23, 2010 124 STAT. 247
    ‘‘(A) IN GENERAL.—Any applicable individual for any
    month if the applicable individual’s required contribution
    (determined on an annual basis) for coverage for the month
    exceeds 8 percent of such individual’s household income
    for the taxable year described in section 1412(b)(1)(B) of
    the Patient Protection and Affordable Care Act. For purposes
    of applying this subparagraph, the taxpayer’s household
    income shall be increased by any exclusion from gross
    income for any portion of the required contribution made
    through a salary reduction arrangement.
    ‘‘(B) REQUIRED CONTRIBUTION.—For purposes of this
    paragraph, the term ‘required contribution’ means—
    ‘‘(i) in the case of an individual eligible to purchase
    minimum essential coverage consisting of coverage
    through an eligible-employer-sponsored plan, the portion
    of the annual premium which would be paid by
    the individual (without regard to whether paid through
    salary reduction or otherwise) for self-only coverage,
    or
    ‘‘(ii) in the case of an individual eligible only to
    purchase minimum essential coverage described in subsection
    (f)(1)(C), the annual premium for the lowest
    cost bronze plan available in the individual market
    through the Exchange in the State in the rating area
    in which the individual resides (without regard to
    whether the individual purchased a qualified health
    plan through the Exchange), reduced by the amount
    of the credit allowable under section 36B for the taxable
    year (determined as if the individual was covered
    by a qualified health plan offered through the
    Exchange for the entire taxable year).
    ‘‘(C) SPECIAL RULES FOR INDIVIDUALS RELATED TO
    EMPLOYEES.—For purposes of subparagraph (B)(i), if an
    applicable individual is eligible for minimum essential coverage
    through an employer by reason of a relationship
    to an employee, the determination shall be made by reference
    to the affordability of the coverage to the employee.
    ‘‘(D) INDEXING.—In the case of plan years beginning
    in any calendar year after 2014, subparagraph (A) shall
    be applied by substituting for ‘8 percent’ the percentage
    the Secretary of Health and Human Services determines
    reflects the excess of the rate of premium growth between
    the preceding calendar year and 2013 over the rate of
    income growth for such period.
    ‘‘(2) TAXPAYERS WITH INCOME UNDER 100 PERCENT OF POVERTY
    LINE.—Any applicable individual for any month during
    a calendar year if the individual’s household income for the
    taxable year described in section 1412(b)(1)(B) of the Patient
    Protection and Affordable Care Act is less than 100 percent
    of the poverty line for the size of the family involved (determined
    in the same manner as under subsection (b)(4)).
    ‘‘(3) MEMBERS OF INDIAN TRIBES.—Any applicable individual
    for any month during which the individual is a member of
    an Indian tribe (as defined in section 45A(c)(6)).
    ‘‘(4) MONTHS DURING SHORT COVERAGE GAPS.—
    ‘‘(A) IN GENERAL.—Any month the last day of which
    occurred during a period in which the applicable individual
    Applicability.
    Determination.
    Definition.
    VerDate Nov 24 2008 03:39 May 07, 2010 Jkt 089139 PO 00148 Frm 00129 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL148.111 GPO1 PsN: PUBL148 dkrause on GSDDPC29PROD with PUBLIC LAWS
    124 STAT. 248 PUBLIC LAW 111–148—MAR. 23, 2010
    was not covered by minimum essential coverage for a
    continuous period of less than 3 months.
    ‘‘(B) SPECIAL RULES.—For purposes of applying this
    paragraph—
    ‘‘(i) the length of a continuous period shall be determined
    without regard to the calendar years in which
    months in such period occur,
    ‘‘(ii) if a continuous period is greater than the
    period allowed under subparagraph (A), no exception
    shall be provided under this paragraph for any month
    in the period, and
    ‘‘(iii) if there is more than 1 continuous period
    described in subparagraph (A) covering months in a
    calendar year, the exception provided by this paragraph
    shall only apply to months in the first of such
    periods.
    The Secretary shall prescribe rules for the collection of
    the penalty imposed by this section in cases where continuous
    periods include months in more than 1 taxable year.
    ‘‘(5) HARDSHIPS.—Any applicable individual who for any
    month is determined by the Secretary of Health and Human
    Services under section 1311(d)(4)(H) to have suffered a hardship
    with respect to the capability to obtain coverage under a qualified
    health plan.
    ‘‘(f) MINIMUM ESSENTIAL COVERAGE.—For purposes of this section—
    ‘‘(1) IN GENERAL.—The term ‘minimum essential coverage’
    means any of the following:
    ‘‘(A) GOVERNMENT SPONSORED PROGRAMS.—Coverage
    under—
    ‘‘(i) the Medicare program under part A of title
    XVIII of the Social Security Act,
    ‘‘(ii) the Medicaid program under title XIX of the
    Social Security Act,
    ‘‘(iii) the CHIP program under title XXI of the
    Social Security Act,
    ‘‘(iv) the TRICARE for Life program,
    ‘‘(v) the veteran’s health care program under
    chapter 17 of title 38, United States Code, or
    ‘‘(vi) a health plan under section 2504(e) of title
    22, United States Code (relating to Peace Corps volunteers).
    ‘‘(B) EMPLOYER-SPONSORED PLAN.—Coverage under an
    eligible employer-sponsored plan.
    ‘‘(C) PLANS IN THE INDIVIDUAL MARKET.—Coverage
    under a health plan offered in the individual market within
    a State.
    ‘‘(D) GRANDFATHERED HEALTH PLAN.—Coverage under
    a grandfathered health plan.
    ‘‘(E) OTHER COVERAGE.—Such other health benefits coverage,
    such as a State health benefits risk pool, as the
    Secretary of Health and Human Services, in coordination
    with the Secretary, recognizes for purposes of this subsection.
    ‘‘(2) ELIGIBLE EMPLOYER-SPONSORED PLAN.—The term
    ‘eligible employer-sponsored plan’ means, with respect to any
    Definition.
    Applicability.
    VerDate Nov 24 2008 03:39 May 07, 2010 Jkt 089139 PO 00148 Frm 00130 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL148.111 GPO1 PsN: PUBL148 dkrause on GSDDPC29PROD with PUBLIC LAWS
    PUBLIC LAW 111–148—MAR. 23, 2010 124 STAT. 249
    employee, a group health plan or group health insurance coverage
    offered by an employer to the employee which is—
    ‘‘(A) a governmental plan (within the meaning of section
    2791(d)(8) of the Public Health Service Act), or
    ‘‘(B) any other plan or coverage offered in the small
    or large group market within a State.
    Such term shall include a grandfathered health plan described
    in paragraph (1)(D) offered in a group market.
    ‘‘(3) EXCEPTED BENEFITS NOT TREATED AS MINIMUM ESSENTIAL
    COVERAGE.—The term ‘minimum essential coverage’ shall
    not include health insurance coverage which consists of coverage
    of excepted benefits—
    ‘‘(A) described in paragraph (1) of subsection (c) of
    section 2791 of the Public Health Service Act; or
    ‘‘(B) described in paragraph (2), (3), or (4) of such
    subsection if the benefits are provided under a separate
    policy, certificate, or contract of insurance.
    ‘‘(4) INDIVIDUALS RESIDING OUTSIDE UNITED STATES OR RESIDENTS
    OF TERRITORIES.—Any applicable individual shall be
    treated as having minimum essential coverage for any month—
    ‘‘(A) if such month occurs during any period described
    in subparagraph (A) or (B) of section 911(d)(1) which is
    applicable to the individual, or
    ‘‘(B) if such individual is a bona fide resident of any
    possession of the United States (as determined under section
    937(a)) for such month.
    ‘‘(5) INSURANCE-RELATED TERMS.—Any term used in this
    section which is also used in title I of the Patient Protection
    and Affordable Care Act shall have the same meaning as when
    used in such title.
    ‘‘(g) ADMINISTRATION AND PROCEDURE.—
    ‘‘(1) IN GENERAL.—The penalty provided by this section
    shall be paid upon notice and demand by the Secretary, and
    except as provided in paragraph (2), shall be assessed and
    collected in the same manner as an assessable penalty under
    subchapter B of chapter 68.
    ‘‘(2) SPECIAL RULES.—Notwithstanding any other provision
    of law—
    ‘‘(A) WAIVER OF CRIMINAL PENALTIES.—In the case of
    any failure by a taxpayer to timely pay any penalty imposed
    by this section, such taxpayer shall not be subject to any
    criminal prosecution or penalty with respect to such failure.
    ‘‘(B) LIMITATIONS ON LIENS AND LEVIES.—The Secretary
    shall not—
    ‘‘(i) file notice of lien with respect to any property
    of a taxpayer by reason of any failure to pay the
    penalty imposed by this section, or
    ‘‘(ii) levy on any such property with respect to
    such failure.’’.
    (c) CLERICAL AMENDMENT.—The table of chapters for subtitle
    D of the Internal Revenue Code of 1986 is amended by inserting
    after the item relating to chapter 47 the following new item:
    ‘‘CHAPTER 48—MAINTENANCE OF MINIMUM ESSENTIAL COVERAGE.’’.
    (d) EFFECTIVE DATE.—The amendments made by this section
    shall apply to taxable years ending after December 31, 2013.

  8. The other case that lost in VA.

    http://westlawnews.thomson.com/National_Litigation/News/2010/11_-_November/Federal_judge_tosses_challenge_to_Obama_healthcare_law/

    Federal judge tosses challenge to Obama healthcare law12/1/2010

    WASHINGTON, Nov 30 (Reuters Legal) – A federal judge in Virginia on Tuesday dismissed a lawsuit challenging the landmark healthcare law championed by President Barack Obama, upholding key provisions that require health insurance coverage.

    The challenge, one of several attempting to strike down the law, was brought by the conservative Christian Liberty University and individuals who said the law would violate several parts of the U.S. Constitution.

    However, U.S. District Judge Norman Moon ruled that the law requiring individuals to buy health insurance coverage as well as requiring employers to buy coverage for their employees was legal under the Commerce Clause of the U.S. Constitution.

    Moon found that without the coverage requirements in the law, the cost of health insurance would increase because the number of insured individuals would decline, “precisely the harms that Congress sought to address with the Act’s regulatory measures.”

    Further, interstate commerce would be hurt by large employers failing to offer adequate healthcare coverage, thus “the employer coverage provision is a lawful exercise of Congress’ Commerce Clause power,” said Moon, who was appointed by then-Democratic President Bill Clinton.

    (more at the link above)

  9. Moon whiffed on that one. Moon judged on economic impact (this was noted in the opening statements of Hudson), and not whether congress has the power under the commerce clause and the constitution to force citizens to purchase a private commodity.

    The heart of the matter is not healthcare. It is whether the governemnt can penalize you for non-commerce (passivity), and whether this mandate constitutes a tax or a penalty. In other words, say the government deems that you will need a commodity at some point in your life. You now have to buy it. If you do not buy it, you are penalized.

    If this is a penalty (the obama position), the mandate is unconstitutional because congress has overstepped its bounds. If this is a tax (contrary to what obama stated, and Sebelius claims), then congress is within its bounds.

    what gives congress the right to penalize you for not buying a commodity?

  10. jd asked, “what gives congress the right to penalize you for not buying a commodity?”

    The answer is nothing at all, nothing except a Democrat majority in both branches of Congress and a totalitarian Democrat ideologue in the White House. It’s the naked application of the arrogance of power.

    Democrats want to force the American people to knuckle under to one of their key socialist programs. It’s the holy grail of Marxist domination over a dependent population, it represents the loss of freedom for the individual and the institution of State control over life and death.

    All done in the name of equality for only the very best of intentions and in the interests of the common good. You do agree, don’t you comrade?

  11. It should be noted that both decisions are under the Fourth Circuit Court of Appeals, where these cases would head next. What we have are differing decisions in the same appellate jurisdiction, so it would make some sense for these to be the cases which proceed. The Fourth Circuit has a general conservative reputation, but whatever the result, it’s almost certainly going to go to the Supreme Court; it’s just a question of how long that takes. If it takes until after President Palin’s inauguration, :) she could instruct the Department of Justice not to press the appeal on a pre-existing favorable decision.

    There’s a possibility that Justice Elena Kagan would recuse herself, due to the work she did on the law while Solicitor General; that means that even if Justice Kennedy bolts to the wrong side, a 4-4 decision would uphold whatever decision came out of the Fourth Circuit.

    If the eventual decision is that the individual mandate is invalidated, it actually becomes a simpler choice: complete taxpayer funding of a single-payer system (no one doubts the government’s authority to tax), or no government mandated health care system.

  12. Moon found that without the coverage requirements in the law, the cost of health insurance would increase because the number of insured individuals would decline, “precisely the harms that Congress sought to address with the Act’s regulatory measures.”

    Further, interstate commerce would be hurt by large employers failing to offer adequate healthcare coverage, thus “the employer coverage provision is a lawful exercise of Congress’ Commerce Clause power,” said Moon, who was appointed by then-Democratic President Bill Clinton.

    I think Moon was on the moon when he wrote this. He looked at the financial outcome of the law rather than whether the Constitution allows Congress to mandate people to buy insurance.

    The best argument is yesterday’s decision was if you do not buy something, how can Congress apply the Commerce Clause – NO COMMERCE TOOK PLACE.

    [Edit-now it's right]

  13. The 3rd Decision:

    Federal Judge Rejects Challenge To Key Elements Of Health Care Law
    Brian Beutler | October 7, 2010, 5:32PM
    President Barack Obama

    The first federal court ruling on the Constitutionality of the health care law is bad news for those trying to repeal it.

    In Detroit today, U.S. District Court Judge George Steeh refused to issue a preliminary injunction to delay implementing the law in the state. He also dismissed the key contention of the bill’s conservative opponents: that a mandate requiring individuals to buy health insurance is unconstitutional.

    Read more here:

    http://tpmdc.talkingpointsmemo.com/2010/10/federal-judge-rejects-challenge-to-key-elements-of-health-care-law.php

  14. jd says:
    14 December 2010 at 11:11

    M

    oon whiffed on that one. Moon judged on economic impact (this was noted in the opening statements of Hudson), and not whether congress has the power under the commerce clause and the constitution to force citizens to purchase a private commodity.

    The heart of the matter is not healthcare. It is whether the governemnt can penalize you for non-commerce (passivity), and whether this mandate constitutes a tax or a penalty. In other words, say the government deems that you will need a commodity at some point in your life. You now have to buy it. If you do not buy it, you are penalized.

    If this is a penalty (the obama position), the mandate is unconstitutional because congress has overstepped its bounds. If this is a tax (contrary to what obama stated, and Sebelius claims), then congress is within its bounds.

    what gives congress the right to penalize you for not buying a commodity?”

    Excerpt:

    ” … If this is a penalty (the obama position), the mandate is unconstitutional because congress has overstepped its bounds. If this is a tax (contrary to what obama stated, and Sebelius claims), then congress is within its bounds. …”

    That would depend on the kind of tax it is, assuming we have any shreds of constitutional government left. As I have stated before it logically amounts, in practical terms and its effects, to a kind of capitation tax or worse, corvee. This, under the justification the leftoids have themselves presented – i.e., the ostensible greater social good of reduced insurance premiums for some.

  15. The following excerpt from the WaPo’s Amy Goldstein, December 15, 2010 reminds us of an interesting Obama flip-flop on the mandatory purchase provision in his unconstitutional health insurance scam. He was against it before he was for it.

    “Mandatory coverage moves to forefront of health-care debate”

    “With a court ruling in Virginia this week that the government cannot require Americans to buy health insurance, President Obama has landed in the position of defender-in-chief of an idea he once opposed.

    As a candidate for the Democratic presidential nomination, Obama insisted that the health-care reform plans of his rivals were misguided, because they envisioned forcing Americans to buy health insurance or risk a fine. Over and over, he said on the campaign trail that such a mandate was unnecessary.

    “My belief is – is that if we make [insurance] affordable, if we provide subsidies to those who can’t afford it, they will buy it,” Obama put it during a January 2008 debate in Los Angeles against fellow candidate Hillary Rodham Clinton, who favored a mandate.

    Nearly three years later, the insurance requirement – part of the scaffolding of the health-care legislation that Congress enacted in March – has emerged as the law’s central villain.

    The mandate is the most frequent grounds for challenges to the constitutionality of the health-care law, appearing in 20 of the two dozen lawsuits working their way through federal courts across the country. And among the public, it is, by far, the least popular facet of the law; nearly seven in 10 Americans say it should be repealed, according to a recent survey by the Kaiser Family Foundation, a health-care research and policy organization…”

Comments are closed.