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Another lawsuit against ObamaCare survives a preliminary challenge

October 14, 2010 |  6:32 pm

McCollumThe rulings keep rolling in on the constitutionality of the federal healthcare reform law. On Thursday, a federal judge in Florida refused to dismiss the lawsuit brought by a group of state attorneys general( led by Florida's Bill McCollum, at right), although he threw out several of the suit's lesser claims. (Here's the ruling, courtesy of the Wall Street Journal.) That's the second such decision; a federal judge in Virginia held in August that the Commonwealth's attorney general could proceed with a similar lawsuit. On the flip side, a federal judge in Michigan ruled earlier this month against a lawsuit that had been brought by the Thomas More Law Center, declaring that the law's requirement to buy health insurance was constitutional.

The central issue in each of these cases is whether Congress exceeded its authority when it required virtually all American adults to obtain coverage or pay a penalty to the Internal Revenue Service. In Florida, U.S. District Judge Roger Vinson agreed to let that question proceed to the next stage, where the legal and factual issues will receive a full airing.

In particular, he refused to dismiss the claim that the individual mandate violated the commerce clause of the Constitution and the 9th and 10th Amendments. Congress' bid to regulate economic inactivity was unprecedented, Vinson wrote, and even the Congressional Budget Office had questioned the constitutionality of requiring Americans to buy insurance:

[The] case law is instructive, but ultimately inconclusive because the Commerce Clause and Necessary and Proper Clause have never been applied in such a manner before. The power that the individual mandate seeks to harness is simply without prior precedent....

As the nonpartisan CBO concluded sixteen years ago (when the individual mandate was considered, but not pursued during the 1994 national healthcare reform efforts): “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.” See Congressional Budget Office Memorandum, The Budgetary Treatment of an Individual Mandate to Buy Health Insurance, August 1994 (emphasis added).

Of course, 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.

Vinson also refused to dismiss the plaintiffs' claim that the expansion of Medicaid in the law unconstitutionally commandeered state authority. The law seemed to give states a Hobson's choice, the judge wrote: either shoulder the burdens imposed by the expansion or stop participating in the Medicaid program altogether, sacrificing all the federal aid it provides to provide healthcare to the poor.

Similar claims about previous federal laws had gained little traction in the courts, Vinson noted, because other federal circuits routinely held that state authority wasn't commandeered by a federal program if a state could opt out. Yet he also observed that "there is a line somewhere between mere pressure and impermissible coercion." Because the 11th Circuit (which includes Florida) had yet to rule that state authority could not be commandeered by an optional program, Vinson wrote, he allowed the plaintiffs to proceed with the claim.

The attorneys general had also argued that the mandate amounted to an unconstitutional direct tax, while lawyers for the Obama administration argued that it was a legal use of Congress' extensive taxing power. Vinson tossed out both sides' arguments, ruling that the law's penalty for not obtaining insurance was just that -- a penalty, not a tax. He was particularly critical of the administration's argument, noting that the measure would have had an even tougher time getting through Congress had President Obama characterized it as a tax increase (in fact, Vinson tartly observed, Obama had said it was "absolutely not a tax").

Vinson also dismissed the plaintiffs' claims that the law was an unconstitutional interference with state sovereignty (based on the mandates the law would impose on the states as employers); that the state insurance exchanges created by the law commandeered state authority; and that the individual insurance mandate violated the due process clause of the 5th Amendment.

-- Jon Healey

Credit: AP Photo / Jason Behnken



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