Editorial 02-01-2011: Healthcare Reform, Judicial Activism, and Corporate Influence

On Monday, a Ronald Reagan appointed federal judge declared the entire healthcare reform act to be unconstitutional. He is the second federal judge to declare the individual mandate unconstitutional, and the first to declare the entire bill unconstitutional. Two other judges declared the bill to be constitutional, and several others have thrown the case out.

The first judge to declare the individual mandate unconstitutional was Henry Hudson. In the days after his decision, it became known that he is an investor in a Conservative consulting firm called Campaign Solutions, Inc. The firm has advised several Republican politicians including Virginia Attorney General Ken Cuccinelli, the man who brought the suit against the Obama administration.

So, a judge deciding a case is an investor in a company. The plaintiff in the case is a client of the company. The judge sides with the plaintiff. Sounds illegal, right? I’m not a lawyer, but according to wikipedia:

“Disqualification of justice, judge, or magistrate judge,” provides that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The same section also provides that a judge is disqualified “where he has a personal bias or prejudice concerning a party, […] or a member of his or her immediate family has a financial interest in the outcome of the proceeding.

The general rule is that to warrant recusal, a judge’s expression of an opinion about the merits of a case or familiarity with the facts or the parties [emphasis added] must have originated in a source outside the case itself. This is referred to in the United States as the “extra-judicial source rule” and was recognized as a general presumption, although not an invariable one, in the 1994 U.S. Supreme Court decision in Liteky v. United States.”

Ultimately, the judicial decision by Henry Hudson went beyond the sort of judicial activism displayed by Judge Vinson in Florida on Monday. It was influenced by a corporate connection, much like how Justice Thomas’s and Justice Scalia’s decisions in Citizens United were influenced by a relationship with the Koch brothers (and Thomas’s wife’s financial involvement with Conservative fundraising organizations that stood to benefit from the decision).

At the very least, the corporate connection in the aforementioned cases gives the appearance of corruption, which can be just as damaging as quid pro quo corruption.

The bill’s constitutionality will ultimately be debated and decided by the Supreme Court. With little doubt, Scalia, Alito, Thomas, and Roberts will say it is unconstitutional, and Sotomayor, Kagan, Ginsburg, and Breyer will declare it constitutional. That leaves Justice Anthony Kennedy, a 74 year old Reagan appointee who has been more moderate than Reaganites would have liked.

Kennedy is the swing vote. Whether or not 32 million Americans have health insurance is up to him. Whether or not people with pre-existing conditions are denied health insurance is up to him. Whether or not thousands of families will go bankrupt because a son, daughter, mother, or father gets sick, is up to him.

The people of the United States of America vote for congressmen, senators, and the president. A bill that passed the senate, passed the house of representatives, and was signed by the president may very well be destroyed because of three Reagan-appointed judges.

Judicial activism, indeed.

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