Right now, the legal machinations regarding the Affordable Care Act are kind of like the overture you hear before a musical starts. It's a little preview of the different songs to come, but it isn't really the show itself. So today, Judge Henry Hudson ruled that the individual mandate is unconstitutional, in contrast to a series of other judges in other jurisdictions who have found the opposite.
Should you be worried? Well yeah, but not because of this ruling.
Hudson was hearing the case because Virginia Attorney General Ken Cuccinelli did some judge-shopping and decided to file his suit against the ACA with a judge he predicted would be sure to rule against it. Hudson was a good bet, since he's been a prominent Republican for some time and was appointed by George W. Bush. But Hudson didn't go as far as he could have -- he ruled against Cuccinelli's request to suspend all work on implementing the ACA while the case is being appealed. That means officials in the Department of Health and Human Services can continue to prepare for when the law takes full effect in 2014.
Even more important, Hudson ruled that striking down the mandate didn't mean the rest of the law was also unconstitutional. This is a preview of what could become a key issue if the Supreme Court agrees that the mandate is unconstitutional: "severability." In a rather astonishing display of incompetence, Democratic staffers writing the bill forgot to include a severability clause stating that if any part of the bill was declared unconstitutional, everything else would remain intact. That doesn't necessarily mean the whole bill goes down if the mandate goes down, but it does give the Court leeway to pull other provisions out along with the mandate. All of this will be decided when this lawsuit and all the others eventually wind their way up to the Supreme Court.
And when they do, the only thing that will matter is how Anthony Kennedy feels about all this. We can be almost certain that Antonin Scalia, Clarence Thomas, Samuel Alito, and John Roberts will put on their activist hats and take any means they can to strike down the most important piece of progressive social legislation passed in decades. The four liberals will almost certainly vote to uphold it. And that leaves Kennedy, who holds the fate of the country's health-care system, and that of the millions of people without coverage and millions more who might lose it in the future, in his hands. And yeah, that should make you worried.
-- Paul Waldman
