Yes, Judge Hudson did strike down one provision of the landmark health care law, but his opinion is so poorly reasoned, so bereft of legal analysis and so inconsistent with precedent that it has no chance of convincing the Supreme Court to strike down this law. If this is the best that opponents of health reform have to offer, than the act's supporters have nothing to fear.
Indeed, Judge Hudson's decision striking down just one small part of the Affordable Care Act -- the requirement that nearly all Americans either carry insurance or pay slightly more income taxes -- places him on a collision course with the views of one of the Supreme Court's most conservative members: Justice Antonin Scalia.
The Constitution doesn't just give Congress sweeping authority to regulate the national economy, it also empowers Congress to "make all laws which shall be necessary and proper for carrying into execution" its authority to enact economic regulation. As Justice Scalia explains, this means that "where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective."
The act eliminates one of the insurance industry's most abhorrent practices -- denying coverage to patients with pre-existing conditions -- but this ban cannot function if patients are free to enter and exit the insurance market at will. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan's consumers.
Nor is this fear just idle conjecture. Seven states enacted a pre-existing-conditions law without also passing an insurance coverage requirement, and all seven states saw their health insurance premiums spiral out of control. In some of these states, the individual insurance market collapsed, leaving many people without any insurance options whatsoever.
There is a way out of this trap, however. Massachusetts enacted a minimum coverage provision in 2006 to go along with its pre-existing-conditions provision, and the results were both striking and immediate. Massachusetts' premiums rapidly dropped by 40 percent.
In other words, because the only way to make the pre-existing-conditions law effective is to also require participation in the insurance market, that requirement easily passes Scalia's test.
Yet, somewhat astoundingly, Judge Hudson did not once reference Scalia's clear rule. Nor did he even mention one of many other Supreme Court cases establishing that Congress "possesses every power needed" to make its laws effective. Instead, Hudson simply waves this rule away with a single cryptic statement that the Affordable Care Act doesn't fit within "the letter and spirit of the Constitution."
In the end, there is a simple explanation for why he couldn't provide such an explanation: The law clearly does not support his position. Fifteen judges have now heard cases challenging the Affordable Care Act, and 14 of those cases have been dismissed -- many of them on the grounds that a federal court shouldn't even be hearing these challenges in the first place. Judge Hudson is an extreme outlier, and his disregard for precedent is unlikely to win too many supporters on higher courts.
One thing, however, is very clear from his opinion. Opponents of health reform have finally shown their cards -- and revealed themselves to have an exceptionally weak hand. If Henry Hudson's folly represents the best case against health reform, then the Affordable Care Act will be just fine.