October 2010

Understandably, some readers may be confused by media summaries of Florida Federal District Judge Roger Vinson's decision last Thursday, October 14, in the constitutional challenge by 20 Republican state attorneys general and governors to the health reform law (Affordable Care Act or ACA). In a (necessarily) somewhat complicated opinion, the judge dismissed four counts from the AGs' complaint but permitted two counts to proceed. This post will attempt briefly to clarify what the judge decided.

In his decision, Judge Vinson differed with Judge Dana Sabraw of the Southern District of California, who on August 27 dismissed, on standing and ripeness grounds, a challenge to the ACA's minimum coverage provision, or "individual mandate," by a private advocacy group and individual members. Judge Sabraw, whose decision is now on appeal to the Ninth Circuit, denied these plaintiffs standing to sue because they had not demonstrated that, when the minimum coverage provision takes effect in 2014, they would fail to have insurance in keeping with its requirements. Judge Vinson held it unnecessary for the individual plaintiffs to make such a demonstration. He did not consider the question whether the AGs had standing to challenge the individual mandate, perhaps assuming that, if one among a group of plaintiffs has standing to pursue a common claim for non-monetary relief, they all have standing.

On the merits, Judge Vinson curtly dismissed the AGs' claims on three counts:

Their claim that the "employer mandate," equally applicable to private and public sector employers, violates states' 10th amendment "sovereignty" interests.

Their claim that state sovereignty is infringed by ACA provisions that give states the option of establishing exchanges for marketing health insurance plans for individuals not covered by group plans, or letting the Federal government handle the job. He ruled that their "argument for this claim is directly foreclosed" by a 1981 Supreme Court decision upholding a similar optional arrangement for administration of the Surface Mining Control and Reclamation Act.

The claim that universal mandatory insurance violates individuals' due substantive due process rights under the 5th amendment. Since the post-New Deal "demise of substantive due process in the arena of economic regulation," he noted, such claims cannot stand against laws that, "the legislature could reasonably conclude," are "rationally related to a legitimate end" (except when linked to a right determined by the Supreme Court to be "fundamental"). Here, Judge Vinson stated: "Congress made factual findings in the Act and concluded that the individual mandate was ‘essential' to the insurance market reforms contained in the statute." This, he said, was enough to establish a "'rational basis justifying the individual mandate" (given that the right to determine how we pay for health care is not constitutionally "fundamental").

The above three rulings constitute final decisions and on each the AGs' claims are out of the case, unless reinstated on appeal.

On three issues Judge Vinson declined to dismiss the AGs' case at this juncture. These three issues, however, implicate core features of the ACA.

Citing yesterday's ruling by U.S. District Court Judge Roger Vinson, appointed by President Reagan, allowing a legal challenge to proceed against the administration's landmark health care reform law, Bouie writes:

The key words here are "Reagan appointee." Besides being ridiculous, one of the side effects of the GOP's war on the judicial nomination process is that the federal judiciary remains slanted in favor of conservative ideas. Between Reagan, Bush, and George W. Bush, Republicans have had 20 years to put their stamp on the federal judiciary, and it's been successful. Liberals still have a chance to counteract that, but it depends on a more reasonable GOP (highly unlikely) or an administration willing to fight Republican obstruction on judicial nominations (slightly more likely).

Although Judge Vinson wrote that his rejection of the government's motion to dismiss the lawsuit, brought by Florida Attorney General Bill McCollum, was not touching upon the constitutional questions involved, he did reveal sympathy for the argument that the reform's individual mandate is constitutionally suspect. The individual mandate provision of the health care reform law requires people to purchase health care insurance or pay a tax.

In what The New York Times called a "foreboding ruling for the Obama administration," Judge Vinson called the individual mandate unprecedented. "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."

As noted during a press conference call yesterday, three other federal courts have issued decisions in lawsuits challenging the health care reform law, and all have supported the law. Simon Lazarus, public policy counsel for the National Senior Citizens Law Center, and author of an ACS Issue Brief on the individual mandate, noted that the recent ruling by a federal judge in Michigan flatly rejected the argument that the individual mandate exceeded Congress's constitutional authority. Audio of the press call, which was hosted by ACS and the Center for American Progress, is available here.