Court Challenge to HCR Flawed

Brian Beutler reports on Talking Points Memo that conservative legal scholars find flaws in the recent ruling by Virginia district court judge Henry Hudson that the mandate in health care reform is unconstitutional.

"I've had a chance to read Judge Hudson's opinion, and it seems to me it has a fairly obvious and quite significant error," writes Orin Kerr, a professor of law at George Washington University, on the generally conservative law blog The Volokh Conspiracy. Kerr and others note that Hudson's argument against Congress' power to require people to purchase health insurance rests on a tautology.

"Given that existing Supreme Court case law gives the federal government a fairly straightforward argument in support of the mandate under the Necessary and Proper clause, Judge Hudson's error leads him to assume away as a matter of 'logic' what is the major question in the case," Kerr writes. "That is unfortunate, I think."

Legal scholars add that this does not necessarily mean that the mandate is constitutional, just that Hudson's legal reasoning is flawed. This criticism comes following revelations of Hudson's financial interest in a GOP consulting firm that worked against passage of the health care reform law.

--Ballard Burgher