Challenging Health Care Law, Suit Advances

Challenging Health Care Law, Suit Advances
By KEVIN SACK
Copyright by The New York Times
Published: October 14, 2010
http://www.nytimes.com/2010/10/15/health/policy/15health.html?th&emc=th


In a foreboding ruling for the Obama administration, a federal judge in Florida decreed Thursday that a legal challenge to the new health care law by officials from 20 states could move forward and warned that he would have to be persuaded that its keystone provision — a requirement that most Americans obtain insurance — is constitutional.

“At this stage in the litigation, this is not even a close call,” wrote Judge Roger Vinson of Federal District Court in Pensacola, Fla., before asserting that the insurance mandate was an unprecedented exercise of Congressional authority.

“Of course, to say that something is ‘novel’ and ‘unprecedented’ does not necessarily mean that it is ‘unconstitutional’ and ‘improper,’ ” Judge Vinson continued. “There may be a first time for anything. But, at this stage of the case, the plaintiffs have most definitely stated a plausible claim.”

Judge Vinson, a senior judge who was nominated by President Ronald Reagan, indicated last month that he would let the case proceed. In Thursday’s opinion, he formally rejected the federal government’s motion to dismiss the suit. It now proceeds to a full hearing on the constitutional issues on Dec. 16.

The Florida case is one of more than 15 legal challenges to the health care law that are aiming for an ultimate hearing before the United States Supreme Court. Last week, a federal judge in Michigan became the first to rule on the merits, deciding that the insurance requirement was constitutional.

Both sides clearly hope to carry the momentum of lower court victories to the appellate level. But it is entirely possible, and perhaps probable, that the appellate courts will wind up contemplating conflicting opinions from below.

Florida’s attorney general, Bill McCollum, filed the Pensacola lawsuit minutes after President Obama signed the health care law in March, and the plaintiffs have grown to include 20 attorneys general or governors, all but one of them Republican. They also include two individuals and the National Federation of Independent Business, which represents small companies.

In his 65-page opinion, Judge Vinson dismissed several lesser claims, but then telegraphed his leanings on the central questions he will now consider more fully.

He sympathized with the plaintiffs’ argument that the insurance requirement, which starts in 2014, was beyond the Supreme Court’s interpretation of the Commerce Clause of the Constitution. The court has ruled that the government can regulate “activities that substantially affect interstate commerce.”

The case is proceeding on a parallel track, but slightly behind, a similar case filed in federal court in Richmond by Virginia’s attorney general. The judge in that case plans to hear oral arguments on Monday. He already has offered his opinion that the law “extends Commerce Clause powers beyond its current high watermark.”

Justice Department lawyers have argued that decisions to forgo coverage are active choices that have significant commercial consequences because the uninsured often cannot afford the medical care they inevitably need. That shifts costs to hospitals, taxpayers and the privately insured.

Judge Vinson disagreed. “It is not based on an activity that they make the choice to undertake,” he wrote. “It is based solely on citizenship and on being alive.”

The judge also used strong language to reject the government’s courtroom characterization of the penalty imposed on the uninsured as a tax. Government lawyers have argued it is a tax because Congress is given broad authority under the Constitution to levy taxes.

But the judge took pains to note that Congress referred to the fines in the legislation as a penalty, and that Mr. Obama denied it was a tax increase. Calling it an “Alice-in-Wonderland tack,” Judge Vinson wrote that Congress had tried to reap a political advantage during the debate by denying it was imposing a tax, and then sought a legal advantage in court by insisting it had done so.

The judge also said he would hear further argument on the plaintiffs’ assertion that the law’s vast expansion of Medicaid, a shared state and federal program, amounts to an unconstitutional commandeering of state tax dollars. But because states can at least theoretically withdraw from the program, Judge Vinson wrote that the law currently “provides very little support” for the argument.