Judge Hints He May Rule Against Health Care Law

From The New York Times and Alliance Defense Fund:

Judge Hints He May Rule Against Health LawBy KEVIN SACK


Published: December 16, 2010

. PENSACOLA, Fla. — A federal judge asserted on Thursday that it would be “a giant leap” for the Supreme Court to accept the Obama administration’s defense of a central provision of the new health care law, suggesting he may become the second judge to strike it down as unconstitutional.



Drew Angerer/The New York Times



Ian H. Gershengorn, the federal lawyer who is defending the law.

Gary McCracken/Pensacola News Journal


Judge Roger Vinson, who is hearing the lawsuit.

In a three-hour hearing, the judge, Roger Vinson of Federal District Court, said the law’s requirement that most Americans obtain insurance, a provision that takes effect in 2014, would constitute “a giant expansion” of the court’s traditional application of the Commerce Clause of the Constitution.



“People have always exercised the freedom to choose whether to buy or not buy a commercial product,” the judge said, noting that he had been uninsured and paid out of pocket when his first son was born.



The hearing came on dueling requests for summary judgment in a lawsuit brought by governors and attorneys general from 20 states, all but one of whom are Republicans. Because of the plaintiffs’ prominence, the cases carry the most political weight of the roughly two dozen court challenges to the sweeping law.



The Supreme Court has held previously that Congress can use its Commerce Clause authority, which is among the powers assigned to the national government, to justify the regulation of “activities that substantially affect interstate commerce.”



Ian H. Gershengorn, a deputy assistant attorney general who is defending the law, told Judge Vinson that the health care market was unique because getting sick was both unpredictable and potentially bankrupting. The economic consequences of not having insurance — including cost-shifting to others — justify its regulation by Congress, he said.



But lawyers representing the state officials argued that the insurance requirement was unconstitutional because it would, for the first time, require citizens to buy a commercial product.



If the government is allowed such power, said David B. Rivkin Jr., who represented the state officials, the health law “would leave more constitutional devastation in its wake than any statute in our history.”



A similar argument was convincing to another federal district judge, Henry E. Hudson of Richmond, Va., who ruled Monday in a separate case that the health law left federal authority without “logical limitation.”



Although two other district court judges had already upheld the insurance mandate, Judge Hudson rejected it, creating a conflict for appellate courts to resolve. He did not suspend any part of the act pending appeals, which are expected to end at the Supreme Court.



Judge Vinson, a senior judge appointed by President Ronald Reagan, has seemed somewhat more receptive than Judge Hudson to the states’ argument that the entire health care law should fall if the insurance mandate is unconstitutional. He said the act was analogous to a watch with interlocking and interdependent wheels.



“It’s also been compared to a Rube Goldberg invention,” he remarked.



Judge Vinson said he would rule “as quickly as possible.”



As in the past, the judge seemed unpersuaded by the plaintiffs’ secondary argument that the health care act violated state sovereignty by imposing a vast expansion of Medicaid eligibility, also slated for 2014. The Medicaid health insurance program for the needy is a shared state and federal program, but the federal government sets minimum eligibility thresholds.



Although the law requires the federal government to absorb the full cost of the expansion initially, states eventually will pay 10 percent, and governors are fearful about the burden on their strained budgets.



Blaine H. Winship, special counsel to Florida’s attorney general, Bill McCollum, argued Thursday that the expansion amounted to a coercive “bait and switch.” He said states had joined the Medicaid program, enticed by its limited initial scope and generous federal payments, only to watch helplessly as Washington expanded eligibility and the states’ obligations.



Yet, he said, states are now so dependent on federal Medicaid dollars to treat the poor that withdrawing from the program is not realistic.



Judge Vinson seized on the fact that states can opt out of Medicaid. He noted that governors and lawmakers in several states had been discussing that very possibility, most notably in Texas, which is one of the plaintiffs.



A version of this article appeared in print on December 17, 2010, on page A20 of the New York edition..