The umpire strikes back

It didn’t take me doing the quick bio check on Henry Hudson to figure out his political proclivities. (For the record, Hudson, the judge who ruled Monday that the purchase mandate that is key to the implementation of the health-care reform signed into law in March, was appointed to the federal bench by George W. Bush.)

In the guise of a strict constructionist, Hudson rewrites the Constitution at the urging of Virginia Attorney General Ken Cuccinelli in ruling that temporary inactivity by consumers in health-care commerce cannot be regulated by Congress and then brazenly rewrites the law to say something that it doesn’t so that he can then rule that what he says it says (and actually doesn’t say) doesn’t meet constitutional muster.

“In concluding that Congress did not intend to exercise its powers of taxation under the General Welfare Clause, this Court’s analysis begins with the unequivocal denials by the Executive and Legislative branches that the (Affordable Care Act) was a tax,” Hudson opines. Except that the provision specifically uses the word “tax,” as Hudson concedes – and he also concedes that the use of the term in reference to the debate over the reform bill was “politically toxic,” though somehow it is beyond his ability to reason that the supposed “unequivocal denials” by the administration and congressional leaders that he had cited may have had something to do with the toxicity.

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Trying to make sense of the ruling:

– Health-care commerce doesn’t begin until a person shows up at the doctor’s office or hospital. Whether or not you have health insurance when you get there is your business. (Until it’s ours, and your “inactivity” causes the system to go bankrupt.)

– Republicans backed Democrats into a corner on whether or not the mandate was a tax, and because they said it wasn’t in a press conference, it doesn’t matter what the actual law says.

I don’t agree with strict constructionists on much, but there is this one bit of common ground, at least in theory – judges should be like umpires in a baseball game. Call the balls and strikes, call balls put into play fair or foul, call runners out or safe on the bases, and otherwise, we shouldn’t know a thing about you.

It’s when the umpire seems to have a rooting interest in the final outcome that things can start to get out of hand.

Judicial activism, as the constructionists like to classify most rulings by liberal-leaning judges that don’t go the way they’d like to see them go, can cut both ways.

Bottom line: We don’t need unelected supposed arbiters trying their hand at writing federal law from behind a black robe. Call it fair or foul, and get the hell out of the way.

Column by Chris Graham. Chris can be reached at

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