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Transcript: Stuart Taylor On Health Law Decision

Lawyer and journalist Stuart Taylor discusses today’s development in health care reform. U.S. District Court Judge Henry Hudson in Virginia struck down a key part of the new health law, saying that the mandate on most Americans to buy health coverage is unconstitutional.

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JACKIE JUDD: Good day. This is Health on the Hill. I’m Jackie Judd. The lynch pin of the health care overhaul law has been declared unconstitutional. Federal Judge Henry Hudson in Virginia ruled that Congress overstepped its authority by requiring that virtually all Americans have health insurance. Here to discuss the ruling, and its implications, is Stuart Taylor, contributing editor for Newsweek and The National Journal, welcome so much.

STUART TAYLOR: Nice to be with you, Jackie.

JACKIE JUDD: The judge ruled in the case brought by the state of Virginia, on what did he base his ruling?

STUART TAYLOR: He said that Congress had no power and the President, and no power in the U.S. Constitution to require individuals who don’t want to buy health insurance to either buy it or pay a penalty for not buying it. And the idea is that Congress does not have unlimited power.

Now, a lot of us have gotten used to the idea that their power is virtually unlimited except for specific provisions of the Bill of Rights, but the Supreme Court has said that they have lots of power but it’s not unlimited. He said penalizing somebody, taxing somebody, call it what you will, for inactivity, just for being born and raised in the United States and deciding not to buy health insurance is beyond the power of Congress and the federal government.

JACKIE JUDD: This is known as the individual mandate, which doesn’t kick in until 2014. What did the judge say about the rest of the bill?

STUART TAYLOR: He said that he would not strike down the rest of the bill except for provisions that were really closely related to this individual mandate, and I’m sure there is a lot of room for argument about which of the 400+ provisions in the bill fit that description.

So, he didn’t give any detail, but this is, as you said, it’s the heart of the bill in the sense that the whole idea of requiring that everybody have insurance including sick people and without any preexisting conditions or medical history getting in the way, somebody has to pay for all that.

This individual mandate is the way it would get paid for to a significant sense by basically making young and healthy people pay for people who are going to require more medical services through the insurance.

JACKIE JUDD: But as a practical matter in the short term, the ruling today doesn’t have much impact on the law, in a legal sense and an implementation sense, but for the White House it must be creating political headaches today.

STUART TAYLOR: Yes because this individual mandate wouldn’t take effect until 2014 – no immediate effect. He didn’t say it has to stop right now. There is nothing to stop. Politically, it’s a big headache more than it is legally. The Supreme Court is not going to care what Judge Henry Hudson thinks.

Politically, though, this puts a lot of wind in the sails of Republicans who are clamoring to repeal the law, of people in the states who are trying to get the states to resist implementation of the law, and in public opinion. Liberal constitutional scholars and some conservatives have been saying ‘This is a ridiculous lawsuit. Of course, it’s constitutional.’ When a federal judge says ‘I don’t think so’ and there is another federal judge coming down the pike who is likely to say the same thing, then it becomes more of a serious issue to people and less of a frivolous lawsuit.

JACKIE JUDD: And the other federal judge you referred to is, are you talking about the judge who will be hearing the case in Florida later this week, or at least the final day of hearings?

STUART TAYLOR: Yeah, his name is Roger Vinson. He will hear, and he will probably rule and the betting is that he will rule the same way Judge Hudson did. The issues are almost the same and that he will strike it down, too. These are Republican appointed judges. [Meanwhile], two Clinton-appointed judges in Detroit and also in Virginia, Lynchburg, Virginia, have upheld the law in similar cases, so the appellate courts will have something to resolve.

JACKIE JUDD: And it does seem like there is this inevitable march towards the Supreme Court. What kind of timeline do you think we would see it there?

STUART TAYLOR: It could be there in time for June 2012. It will be there for a long time once it arrives, you know, if they decide to hear it in October you won’t see a decision until June. No matter when they decide to hear it, you won’t see a decision.I think June 2012, maybe June 2013, the only way it would not be resolved by the Supreme Court is if no federal appeals court strikes it down. If when all these decisions and others that are coming are appealed, all the appeals courts say ‘no, it’s valid,’ then the Supreme Court might never feel it needs to look at it.

JACKIE JUDD: If it does get to the Supreme Court, what is the precedent? Is there any that they would be looking at?

STUART TAYLOR: There are lots of precedents that are relevant and that there’s no precedent to give you the clear answer. Because there’s never been a law in history, at least not any that a court has come to grips with, in which Congress has – under the power to regulate interstate commerce – purported to regulate inactivity, not buying insurance. And therefore you don’t have any precedents right on the nose. Each side has some precedents that by analogy and by extension support its argument, but it’s not a slam dunk for either side as a matter of precedent.

JACKIE JUDD: Okay, I have a feeling we will have you back on this issue in the coming years.

STUART TAYLOR: Thanks very much.

JACKIE JUDD: Thank you so much. 

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