Health Care Judge Skeptical Of Obama’s ‘Unprecedented’ Law

October 15, 2010 5:15 a.m.

Yesterday, a District Court judge in Florida ruled that a lawsuit filed by 20 states and other plaintiffs can proceed. The development represents decidedly mixed news for the Obama administration and supporters of the health care law. The good news is that the judge — Reagan appointee Roger Vinson — threw out four of the plaintiffs’ six complaints. The bad news is that he will hear the weightiest of their contentions — that the individual mandate exceeds Congress’ power to regulate under the Commerce Clause. And according to one of the foremost experts on the health care lawsuits, the ruling indicates that the judge is sympathetic to the plaintiffs.

“On the Commerce Clause argument he suggested it was going to take a lot to convince him that the government is right,” says Professor Timothy Jost of Washington and Lee University. “They’re going to really have to come up with something because [at least in the judge’s mind] the law is pretty clear on that.”Jost bases that conclusion on the final pages of Vinson’s ruling. “The individual mandate applies across the board,” Vinson wrote. “People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive.”

This measure — the individual mandate — has been the main focal point of the law’s opponents for months. Years ago, the Congressional Budget Office concluded that the idea of requiring people to purchase health insurance “unprecedented.” Citing that CBO conclusion, Vinson wrote that “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.”

Key to the plaintiff’s argument is that the health care law does not regulate activity affecting interstate commerce. Instead it seeks to regulate economic inactivity — i.e. by issuing a penalty on people who decide not to buy health insurance.

“He’s bought into the idea that this is regulation of inactivity and that the Constitution requires that there be activity to be regulated,” Jost says. “That’s my reading of the case.”

It’s not all bad news for reform, though.

Jost stressed both that the we’re still watching the earliest stages of litigation, and that already the judge has thrown out four of the plaintiff’s six claims: that the individual mandate violates due process under the Fifth Amendment; that the mandate is an unconstitutional tax (the judge ruled that it’s not a tax at all); that the law coerces and commandeers the states by forcing them to create insurance exchanges; and that it’s unconstitutional to require state government employers to provide insurance to their employees.

All thrown out.

That tracks closely with the Justice Department’s official response to the outcome today.

“While we are disappointed that the Court did not dismiss the entire case, we welcome the judge’s decision to reject most of the claims,” said DOJ spokeswoman Tracy Schmaler. “The judge saved for another day the decision on the merits of two claims, and we remain confident that the law ultimately will be upheld. The only Court that has decided the constitutionality of this law has sustained it and found that the minimum coverage provision was a reasonable step for Congress to take in reforming the nation’s health care system.”

“This case is in the early stages of litigation,” Schmaler added, “and the department will continue to vigorously defend this law in ongoing litigation.”

Onward to court.

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