Liberty University v. Geithner

As opponents of the landmark health care reform law are arguing that the entire law can be scuttled if the law's highly contested individual coverage provision is invalidated, a second federal judge has ruled that the provision is constitutional.

U.S. District Court Judge Norman K. Moon, for the Western District of Virginia, rejected a lawsuit brought by the late televangelist Jerry Falwell's Liberty University arguing that several provisions of the law are unconstitutional. (Liberty University lodged a host of arguments against the constitutionality of the Affordable Care Act - which are outlined in the judge's 54-page opinion, available here.) The individual coverage provision requires that starting in 2014, persons must maintain health care insurance or pay a tax.

Regarding the individual coverage provision, Judge Moon swept aside the university's arguments that not purchasing health care insurance is inaction that cannot be regulated under the Commerce Clause.

Judge Moon wrote in Liberty University v. Geithner:

Nearly everyone will require health care services at some point in their lifetimes, and it is not always possible to predict when one will be afflicted by illness or injury and require care. The ‘fundamental need for health care and the necessity of paying for such services' creates the market in health care and the necessity of paying for such services received' creates the market in health care services, of which nearly everyone is a participant. Far from ‘inactivity,' by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance. As Congress found, the total incidence of these economic decisions has a substantial impact on the national market for health care by collectively shifting billions of dollars on to other market participants and driving up the prices of insurance policies.

U.S. District Court Judge Henry E. Hudson, who is hearing another legal challenge launched in Virginia, has said he would rule before the end of the year on the challenge to the law's individual coverage provision. The litigation brought by Virginia Attorney General Ken Cuccinelli, and joined by more than a dozen other state attorneys general, argues the provision exceeds congressional power. As reported by TPM, opponents of the law say it lacks a so-called "severability clause," which they claim would save the remainder of the law, if a provision of it were found unconstitutional. Cuccinelli, The New York Times reports, claims that if Judge Hudson strikes the provision requiring the purchase of health care insurance that he should "instantly invalidate the entire act on a nationwide basis."

But Timothy Jost, a law professor at Washington and Lee University and a "leading expert" on the law, told TPM that because the law contains no severability clause, "it does not necessarily mean that if the court strikes down a particular provision the rest of the law collapses ... the normal rule is that partial invalidation is the required course." The professor also noted that recent Supreme Court precedent suggests it is "exceptionally unlikely that any of the lower courts will attempt to strike the entire law."

The individual coverage provision, however, as constitutional law experts have pointed out is central to providing health care to millions of Americans who are currently uninsured, and is well within Congress' constitutional powers.

Earlier this year, U.S. District Court Judge George Steeh, who Judge Moon quoted in his opinion today, also found that the provision to purchase health care insurance is essential to making the health care law work. In Thomas More Law Center v. Obama, Steeh wrote, "The government explains that as a part of a comprehensive reform to reduce the ranks of the uninsured, the Act regulates economic decisions regarding the way in which health care services are paid for. The government contends that the Individual Mandate falls within Congress' authority under the Commerce Clause for principal reasons. First, the economic decisions that the Act regulates as to how to pay for health care services have direct and substantial impact on the interstate health care market. Second, the minimum coverage provision is essential to the Act's larger regulation of the interstate business of health insurance." Steeh continued, "Far from ‘inactivity,' by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants."

For more on the constitutionality of the individual coverage provision, see an ACS Issue Brief by the National Senior Citizens Law Center's Simon Lazarus here.