Colorado Republicans praise latest Florida court ruling on health care reform

The Colorado Statesman

As expected by many legal experts and hoped for by Colorado Attorney General John Suthers, a Florida judge on Monday ruled the federal health care law passed in 2009 is unconstitutional.

The ruling now evens the score on the number of federal courts that have taken positions on the Affordable Care Act, with two federal judges declaring the law legal and two ruling against it. Colorado is one of 26 states joining in as a plaintiff in the Florida lawsuit, initially filed by then-Attorney General Bill McCollum on the day the ACA was signed into law by President Barack Obama.

The Monday ruling was from Judge Roger Vinson of the U.S. District Court for the Northern District of Florida. Vinson is a 1983 appointee of President Ronald Reagan. Liberal groups and bloggers have accused the plaintiffs of “forum-shopping,” or looking for the most conservative court in which to file the case.

Vinson’s ruling went much further than the other ruling against the ACA made by a Virginia judge in December. In his decision, Vinson declared the entire federal law unconstitutional, not just the mandate that individuals purchase health insurance, as has been at issue in the three other cases.

Republicans in the state were unanimous in their praises for Vinson’s ruling. State Sen. Shawn Mitchell, R-Broomfield, said, “The simple point of the ruling is that Congress has a limited power to regulate interstate commerce, not an unlimited power to make Americans buy whatever Congress says. Judge Vinson’s ruling blocks an overreaching federal takeover of healthcare. But even more importantly, it upholds the vital principle that our national government has limited, specified powers. The rest is up to states and the choices of free citizens.”

Congressman Mike Coffman, R-CD 6, cheered the ruling, saying the Monday decision “rejects ObamaCare by affirming that Congress does not have the authority to force citizens under the commerce clause to buy a product, and punish them with a tax penalty if they fail to do so.”

And the National Federation of Business, which joined in the lawsuit, issued a statement Monday that said the organization “joined this case to protect the rights of small-business owners to own, operate and grow their businesses free from unnecessary government intervention. The individual mandate, which forces citizens to purchase government approved health insurance, undermines this core principle and gives the federal government entirely too much power. We are delighted Judge Vinson agreed with NFIB and the states on this critical issue.”

Suthers also praised Vinson’s ruling, calling it “well-reasoned.”

“Today’s ruling is a victory for federalism,” Suthers said. The decision “clearly lays out why the individual health insurance mandate included in the president’s health care overhaul law far exceeds the bounds of the federal government’s enumerated powers.”

Vinson stated in his ruling that Congress “exceeded the bounds of its authority in passing the Act with the individual mandate.” He acknowledged in several places that Congress has the authority to address the problems in the health care system, but “the principal dispute has been about how Congress chose to exercise that power here.”

The decision that the entire law is unconstitutional was based on the concept of severability, and for his analysis Vinson drew heavily on an amicus brief filed by the Family Research Council. He noted that the defendants, the U.S. Department of Health and Human Services, have said the individual mandate and the ACA’s health insurance reforms “will rise and fall together as these reforms cannot be severed from the individual mandate.”

Vinson included some of the FRC amicus brief in his discussion of the severability issue. Severability, Vinson explained, is a document of judicial restraint (the exact same language appears in the FRC brief). When confronting a constitutional flaw in statute, he wrote, courts “try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact.” Vinson relied on a two-part severability test as laid out in the FRC brief to determine whether the individual mandate was severable from the rest of the law.

The first test, Vinson wrote, was to determine the intent of Congress as to whether the whole law could function without the individual mandate. “Although many of the [ACA’s] provisions can most likely function independently of the individual mandate, there is nothing to indicate that they can do so in the manner intended by Congress,” Vinson wrote.

The second test, Vinson said, asks the courts to look at the statute and determine if “Congress, had it been presented with a statute that did not contain the struck part, would have preferred to have no statute at all.” To that test, Vinson said “the record seems to strongly indicate that Congress would not have passed the Act in its present form if it had not included the individual mandate. This is because the individual mandate was indisputably essential to what Congress was ultimately seeking to accomplish. It was, in fact, the keystone or lynchpin of the entire health reform effort.”

The FRC brief also pointed out that the ACA did not include a severability clause, although one had been included in the bill’s first draft but was later dropped, a point revisited by Vinson in his ruling. The lack of a severability clause was clearly an intentional decision by Congress, Vinson wrote.

The U.S. Constitution’s Commerce Clause, which was cited in the three other federal rulings regarding the ACA, also was addressed by Vinson. Plaintiffs have said that the Commerce Clause regulates only “activity” and that the failure of an individual to purchase health insurance is “inactivity,” Vinson wrote. Defendants have stated that “activity is not required before Congress can exercise its Commerce Clause power, but that, even if it is required, not having insurance constitutes activity.”

In reaching his conclusion, Vinson said the central question had to be whether activity was required before Congress could exercise its power under the Commerce Clause. In every legal case cited by both the plaintiffs and defendants in their briefs, there was “clear and inarguable activity,” Vinson wrote. And the U.S. Supreme Court has never been asked to distinguish between activity and inactivity, he wrote. In siding with the plaintiffs, Vinson wrote that it would be a “radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause,” and he ruled the individual mandate “regulates inactivity.” Vinson rejected the defendant’s argument that uninsured people make economic decisions on not purchasing insurance that is “tantamount to activity.”

But Vinson also rejected a request from the plaintiffs to impose an injunction that would halt the law’s implementation, noting general agreement that health care reform is needed and referring that issue back to Congress.

“If Congress intends to implement health care reform ­­and there would appear to be widespread agreement across the political spectrum that reform is needed it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not,” Vinson wrote. “It is Congress that should consider and decide these quintessentially legislative questions, and not the courts.”

The ruling on Monday resolved the last two claims made in the original lawsuit; in December, Vinson dismissed four of the six original claims. In the last claim, dealing with the expansion of Medicaid, Vinson ruled in favor of the defendants, rejecting a plaintiffs’ argument that the expansion would be coercive and expensive.

Statements from plaintiffs and other supporters of the lawsuit began flying out almost as soon as Vinson’s ruling was issued.

The case is now likely headed to the U.S. Supreme Court, noted the Colorado Center on Law and Policy. “We now have two court decisions saying health reform complies with the Constitution, and two saying it doesn’t. The ultimate decision on this case will almost certainly come from the U.S. Supreme Court. In the meantime, Colorado needs to keep implementing health care reform.”

The Center’s statement said the court’s analysis of severability was “surprising,” pointing out that courts usually go to “great lengths to uphold the constitutionality of a statute…the preferred result is to sever the [unconstitutional] section and not invalidate the entire law.” And with regard to Vinson’s ruling regarding the Commerce Clause and the issue of activity/inactivity, the Center statement pointed out that “there is a huge effect on commerce because people who don’t have insurance drive up health care costs for everyone else.”

The lawsuit, and the other three dealing with the same issue, are all headed to the U.S. Court of Appeals in their various jurisdictions. On Oct. 7, 2010, a Michigan federal judge ruled against the Thomas More Law Center, a conservative law firm, and declared the ACA and its individual mandate constitutional. On Dec. 15, TMLC filed an appeal to the Sixth Circuit Court of Appeals. The second ruling came on Nov. 30, also in favor of the individual mandate, and was made in the Western District of Virginia and against conservative Liberty University. The university filed its appeal on Jan. 17 with the Fourth Circuit Court of Appeals.

That same court also could hear a joint appeal of a Dec. 13 decision that ruled the individual mandate unconstitutional. However, that appeal, based on a decision from a judge in the Eastern District of Virginia, could head directly to the U.S. Supreme Court. A Jan. 26 statement from original plaintiff and Virginia Attorney General Ken Cuccinelli said he was still “weighing whether or not to request that the U.S. Supreme Court take the case directly and skip the Fourth Circuit altogether.” The Fourth Circuit Court, in an expedited process, last week ordered that all briefs for the appeal be submitted by April 11.

Marianne@coloradostatesman.com