Beyond the Blather, Where Does Health Care Reform Stand after the Virginia Decision?

OK. Judge Henry Hudson has ruled in favor of plaintiffs (State of Virginia) in Virginia v Sebelius. Conservative pundits immediately exclaimed that Health Care Reform is dead. The liberals among that same pontificating group think that this conservative judge just blew it.

Where are we really?

Judge Hudson found, largely through its classification as a penalty rather than a tax, that the Individual Coverage Mandate found in Section 1501 of PPACA (Health Care Reform) is not constitutional. Defendants argued that the provision is allowed under a combination of Congress' right to regulate Interstate Commerce, to tax, to enact laws for the General Welfare, and some other similarly legal terms. The court found for a number of reasons that this provision is a penalty not a tax and defendant's argument imploded.

So, Health Care Reform is dead, right?

Nope! It's still here. First, Section 1501 is not scheduled to take effect until 2014. This gives the higher courts, most notably the US Supreme Court, plenty of time to rule on this issue. Second, there was the issue of whether invalidation of this provision invalidates the whole law, or whether as defendants asked that the remainder of the law stay intact.

Judge Hudson severed. In other words, he did not invalidate the rest of PPACA merely because he invalidated this one provision. Given that Judge Hudson is generally viewed as one of our more (but not most) conservative judges, this is telling. It suggests to this non-attorney that the bulk of Health Care Reform will remain intact, unless repealed by a future Congress and President.

So, temporarily, at least, the projected cost of Health Care Reform has increased by about $4 billion. So sayeth Judge Hudson and the Congressional Budget Office. We're not done yet, though. There are plenty more challenges out there, all as a means to get to the Supreme Court. Surely, the President and his supporters are hoping that he can find a way to get at least one more liberal justice on the Supreme Court. On the other hand, another Republican landslide in 2012 could spell doom for all this. But, this is all speculation.

The verdict is in, as they say on TV, and we still don't know where we are heading.