Health care law vulnerable in the courts

WASHINGTON - MARCH 4:   Aetna Chairman, CEO & ...Image by Getty Images via @daylife
NY Times:

As the Obama administration presses ahead with the health care law, officials are bracing for the possibility that a federal judge in Virginia will soon reject its central provision as unconstitutional and, in the worst case for the White House, halt its enforcement until higher courts can rule.

The judge, Henry E. Hudson of Federal District Court in Richmond, has promised to rule by the end of the year on the constitutionality of the law’s requirement that most Americans obtain insurance, which takes effect in 2014.

Although administration officials remain confident that it is constitutionally valid to compel people to obtain health insurance, they also acknowledge that Judge Hudson’s preliminary opinions and comments could presage the first ruling against the law.

“He’s asked a number of questions that express skepticism,” said one administration official who is examining whether a ruling against part of the law would undermine other provisions. “We have been trying to think through that set of questions,” said the official, who insisted on anonymity because he was not authorized to discuss the case freely.

While many newly empowered Republican lawmakers have vowed to repeal the health care law in Congress, a more immediate threat may rest in the federal courts in cases brought by Republican officials in dozens of states. Not only would an adverse ruling confuse Americans and attack the law’s underpinnings, it could frustrate the steps hospitals, insurers and government agencies are taking to carry out the law.

“Any ruling against the act creates another P.R. problem for the Democrats, who need to resell the law to insured Americans,” said Jonathan Oberlander, a University of North Carolina political scientist, who wrote in The New England Journal of Medicine last week that such a ruling “could add to health care reform’s legitimacy problem.”

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It is much more than a PR problem. In drafting the huge bill the Democrats left out a "savings clause" which basically would have said that if any portion of the bill is found unconstitutional the remainder would still be valid. Without the savings clause the entire bill becomes in doubt if a portion is found unconstitutional.

If the individual mandate is found to be invalid it also undermines the financing of the other provisions of the bill and it may fall of its on weight anyway. That is the portion of the bill that is under attack in most of these cases.
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