Tainted Judge Henry Hudson

On Monday, George W. Bush appointed-Judge Henry Hudson  broke with 14 judges who have dismissed challenges to the Affordable Care Act to become the only judge in America to conclude that the portion of the law requiring almost all Americans to carry insurance is unconstitutional.

By Faiz Shakir, Benjamin Armbruster, George Zornick, Zaid Jilani, Alex Seitz-Wald, Tanya Somanader, and Ian Millhiser at The Progress Report:

Predictably, conservatives reacted to this outlier opinion by pretending it was the single most important decision since Brown v. Board of Education. Virginia Attorney General Ken Cuccinelli (R), who filed the lawsuit, immediately fired off a fundraising solicitation proclaiming, “Cucc inelli succeeded in overturning the individual mandate.” Presumptive House Speaker John Boehner (R-OH) called on states to  ignore the law and refuse to implement it. Even former Massachusetts governor Mitt Romney (R), who signed a nearly identical law while he was governor, pretended to agree with Hudson. But the right is in for a rude awakening. The reality is that Hudson is a deeply ideological judge who handed down an exceptionally poorly reasoned opinion that is unlikely to sway any appellate judge to his side.

A THUMB ON THE SCALE: Hudson’s decision is the culmination of a long career in Republican politics. Even at the beginning of his legal career, Hudson’s loyalties were already clear — one of Hudson’s law school classmates observed that the judge-to-be seemed too concerned with “Giving Legal Problems to the Poor.” As a young prosecutor in Arlington, VA, Hudson earned the nickname “Hang ‘Em High Henry.” Disgraced former Attorney General Ed Meese appointed Hudson to lead the Reagan administration’s anti-pornography commission, which produced “a  miasma of misplaced morality and prudishness masquerading as social science.” Hudson celebrated this release with a proud announcement that “sexual promiscuity…is not something that should be socially condoned.” In 1991, Hudson unsuccessfully ran for Congress as a Republican. He received three political appointments — as a U.S. Attorney, as a state judge, and then to the federal bench — from Republicans. Today, Hudson earns up to $15,000 every year in dividends from stock in an elite Republican consulting firm whose clients included Cuccinelli’s most recent campaign.

A NOT-READY-FOR-PRIME-TIME OPINION: The Affordable Care Act eliminates one of the insurance industry’s most abhorrent practices — denying coverage to patients with preexisting 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 paid into, leaving nothing left for the rest of the plan’s consumers and causing their premiums to spiral out of control. Because the Act’s protections for patients with preexisting conditions cannot function without a requirement that almost everyone carry insurance, even ultra-conservative Justice Antonin Scalia has indicated that the law must be constitutional. In Scalia’s words, “where Congress has the author ity to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” Judge Hudson, however, waved this rule away with a cryptic statement that the Affordable Care Act doesn’t fit within “the letter and spirit of the Constitution.” This utter failure to even explain why he was ignoring the Constitution’s clear command led several conservative commentators to dismiss Hudson’s amateurish legal reasoning. Professor Orin Kerr, a former staffer to Sen. John Cornyn (R-TX), wrote that Hudson committed a “fairly obvious and quite significant error.” Kerr’s colleague Jonathan Adler, a leading opponent of environmental regulation, agrees that Hud son’s opinion “cannot be right.” Even right-wing attack dog Carrie Severino wrote in the conservative National Review that Hudson’s opinion renders an entire provision of the Constitution “meaningless.”

PARTYING LIKE IT’S 1859: Hudson’s opinion is all the more troubling because he  never should have reached the merits of this case in the first place. The Supreme Court held in Massachusetts v. EPA that the Constitution prohibits states from suing the federal government “to protect her citizens from the operation of federal statutes.” Rather than follow the Supreme Court’s unambiguous command, however, Hudson held that a state can get around the Supreme Court’s cl ear command simply by passing a “nullification” statute that purports to invalidate a federal law. Nullification — the  unconstitutional theory that a state can invalidate federal law — had its day in the pre-Civil War era and Jim Crow South. It has no place in the 21st century. Hudson’s decision to breathe even a single breath of life into this long-dead doctrine is ominous, because an increasingly broad array of right-wing lawmakers seem eager to pretend that the North lost the Civil War. In addition to Virginia, the state of Louisiana also passed an unconstitutional law nullifiying the Affordable Care Act, and Florida Senate President Mike Haridopolos (R) recently announced his plan to usher his state into the 19th Century. One Texas lawmaker, a notorious birther, introduced an unconstitutional bill that would make it a felony for any federal official to enforce the Affordable Care Act in Texas. Simply put, it should be the job of the federal courts to dissuade out-of-control ideologues from embracing obviously unconstitutional ideas such as nullification. Judge Hudson did the country a terrible disservice by encouraging their antics.