Health Reform Setback

While many Republicans had expected a Virginia federal judge to strike a blow against the new health reform law, his ruling that a key provision was unconstitutional added new fuel to this already raging political fire.

A year ago, most Democrats and liberal-leaning legal experts laughed and scoffed at talk that the “individual mandate” could be found unconstitutional.

Yesterday, Judge Henry Hudson made clear in a 42 page ruling that he thinks the idea of forcing people to buy health insurance – and punishing them with a federal tax penalty if they do not – is outside the bounds of the Constitution.

Hudson’s ruling was simple – the individual mandate “is neither within the letter nor the spirit of the Constitution.”

The White House and Congressional Democrats downplayed the ruling, rattling off a list of court challenges so far that have not succeeded, and giving little public hint that they are worried about this one.

“We’re confident that it is constitutional,” said White House Press Secretary Robert Gibbs at a briefing. “And quite frankly, of the three courts that have rendered decisions on this question, two have ruled in our favor.”

That is true – two other federal courts have ruled in favor of the Obama Administration.  Now there is one against, and another one might be on the way, as on Thursday, a coalition of twenty states has their day in court down in Florida, in a case that follows the basics of the Virginia argument.

“The judge agreed with Virginia that the federal government does not have the power under the Constitution to order Virginians to buy their government approved health insurance,” said state Attorney General Kenneth Cuccinelli, who has become a main figure in this debate on the health reform law.

“This is a great day for the Constitution,” Cucinnelli added.  “This won’t be the final round, as this will ultimately be decided by the Supreme Court.”

When will it reach the High Court?  Florida Attorney General Bill McCollum told me in late October that his best guess was during the 2012 election year – which would certain make the health care debate even more politically explosive.

One thing to remember is that while this legal battle is going on, Republicans in the Congress are getting ready to unleash a fierce attack on the law – especially in the House.

“Republicans have made a pledge to America to repeal this job-killing health care law, and that’s what we’re going to do,” said House GOP Leader John Boehner.

Almost daring him to do so was outgoing Speaker Nancy Pelosi.

“In Congress, we will stand firm against attempts to roll back the law, including the Patient’s Bill of Rights and the critical consumer protections enacted by health insurance reform,” Pelosi said in her own statement.

One thing is for sure about this story – it is not going away.  It will be around in the courts and in the Congress all the way through 2011.

I remember when the Congress repealed the Catastrophic Health insurance law that was approved in 1989.  Not many people would have thought that was going to happen when it was signed into law.

We’ll see what’s next on this front.