Civil and Human Rights

Florida judge: Fight against insurance mandate can proceed


A federal judge in Florida on Thursday ruled that challenges to the healthcare reform law’s individual mandate and its Medicaid expansion can proceed.

The widely expected ruling does not mean that Florida Northern District Senior Judge Roger Vinson agrees that the law is unconstitutional, only that the arguments against it can’t be dismissed out of hand as the Obama administration had requested. Vinson threw out four other counts having to do with taxation and requiring states to enforce the law.

The White House expressed optimism that the law will be upheld.

“Having failed in the legislative arena, opponents of reform are now turning to the courts in an attempt to overturn the work of the democratically elected branches of government,” Stephanie Cutter, head of health reform messaging, said on the White House blog. “This is nothing new. We saw this with the Social Security Act, the Civil Rights Act, and the Voting Rights Act — constitutional challenges were brought to all three of these monumental pieces of legislation, and all of those challenges failed. So too will the challenge to health reform.”

Republicans in Congress meanwhile vowed to press forward with their efforts to repeal the law.

“It’s good news that the courts have agreed to hear 20 states’ case against President Obama’s overreaching health care law,” House Energy and Commerce Committee ranking member Joe Barton (R-Texas) said in a statement. “But it will be up to Congress, not judges, to fix what’s gone haywire before it can do more damage to more people.”

Attorney General Bill McCollum’s lawsuit, filed the same day that President Obama signed health reform into law, is the main legal challenge to the Democrats’ signature domestic achievement. Challengers include 20 states and the National Federation of Independent Business.

The controversial mandate is central for the law to function because without it private insurers say they’d go broke if they had to follow the new law’s requirements on covering sick people.

In his ruling, Vinson appears open to the challengers’ argument that the individual mandate seeks to regulate “inactivity” because it would penalize people for not buying insurance.

“The individual mandate is not based on an activity that they make the choice to undertake,” Vinson wrote. “Rather, it is based solely on citizenship and on being alive. As the nonpartisan CBO concluded sixteen years ago (… ): ‘A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States’.”

Vinson did offer a caveat: “Of course,” he added, “to say that something is ‘novel’ and ‘unprecedented’ does not necessarily mean that it is ‘unconstitutional’ and ‘improper.’ There may be a first time for anything. But, at this stage of the case, the plaintiffs have most definitely stated a plausible claim with respect to this cause of action.”

Defenders of the law say there’s no such thing as inactivity in the health sphere since everybody is liable to get sick or injured, and people without insurance pass on their medical costs to everyone else.

“Judge Vinson’s refusal to dismiss the claim against the Affordable Care Act’s minimum coverage provision was deeply troubling,” Elizabeth Wydra, chief counsel for the Constitutional Accountability Center, said in a statement. “Regulating such behavior is clearly within Congress’s power under the Commerce Clause. The decision not to buy health insurance is a profoundly economic act. The people who do so are making an economic decision to self-insure.”

The law’s foes immediately latched onto the judge’s comments as reason to rejoice.

“Today we are one step closer to overturning the unconstitutional federal healthcare law,” Karen Harned, executive director of the NFIB Small Business Legal Center, said in a statement.

“Judge Vinson correctly recognized that the individual mandate, which forces all Americans to purchase health insurance, whether they want it or not gives the federal government an unprecedented amount of power over our individual lives.”

Meanwhile, the law’s defenders said they see no reason to panic.

“Today’s decision has no effect on the validity of the health reform law,” Ron Pollack, executive director of the health consumer organization Families USA, said in a statement. “The arguments raised at this stage were merely procedural — whether or not the plaintiffs even had the right to challenge the law. We fully expect that courts, as occurred in Michigan last week, will ultimately uphold the law. Numerous constitutional law experts have also concluded that the law is clearly constitutional.”

Other federal judges have already issued divergent rulings, however, making it difficult to know what to expect as the case moves forward.

In August, a judge in California threw out a suit against the individual mandate saying the plaintiffs had no standing to sue since the requirement doesn’t start until 2014. That case has been appealed to the 9th Circuit Court of Appeals.

Another lawsuit was dismissed in Maryland, and its appeal rejected.
And this past Thursday, a federal district judge in Michigan upheld the mandate’s constitutionality in a separate lawsuit.

The conservative Thomas More Law Center and four individuals had sued the White House over the mandate, arguing that it violates the commerce clause of the Constitution.

But Detroit-based U.S. District Judge George Caram Steeh disagreed, finding that the mandate does not constitute “an improperly apportioned direct tax.”

“The minimum coverage provision of the Health Care Reform Act contains two provisions aimed at the same goal,” Steeh wrote. “Congress intended to increase the number of insureds and decrease the cost of health insurance by requiring individuals to maintain minimum essential coverage or face a penalty for failing to do so.”

In August, however, Judge Henry Hudson of the United States District Court for the Eastern District of Virginia denied the administration’s request to throw out Attorney General Ken Cuccinelli’s lawsuit, also filed Sept. 23.

“Unquestionably, this regulation radically changes the landscape of health insurance coverage in America,” Hudson wrote.

A hearing on the Virginia case is scheduled for Monday.

The counts that survived in the Florida case are:

Count One: The individual mandate and concomitant penalty exceed Congress’s authority under the Commerce Clause and violate the Ninth and Tenth Amendments.

Count Four: The Act coerces and commandeers the states with respect to Medicaid by altering and expanding the program in violation of Article I and the Ninth and Tenth Amendments.

Four other counts were thrown out:

Count Two: The individual mandate and penalty violate substantive due process under the Fifth Amendment.

Count Three: “Alternatively,” if the penalty imposed for failing to comply with the individual mandate is found to be a tax, it is an unconstitutional unapportioned capitation or direct tax in violation of U.S. Const. art. I, § 9, cl. 4, and the Ninth and Tenth Amendments.

Count Five: It coerces and commandeers with respect to the health benefit exchanges in violation of Article I and the Ninth and Tenth Amendments.

Count Six: The employer mandate interferes with the states’ sovereignty as large employers and in the performance of government functions in violation of Article I and the Ninth and Tenth Amendments.

Vinson has already laid out a timeline on how the lawsuit will move forward.

“Assuming the case survives dismissal in whole or in part,” he wrote last month, “the parties have until 11/4/2010 in which to move for summary judgment (and the (defendants) may file their answer at the same time); the opposing party will have until 11/23/2010 to respond; and the moving party will have until 12/6/2010 to file any Reply.”

To read this story in The Hillclick here.


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