Clearing Out the Underbrush in Constitutional Challenges to Health Insurance Reform (NewEngJourMed)

[pinto]

A legal review of the various takes on challenges and support for the Affordable Care Act. ~ pinto

Clearing Out the Underbrush in Constitutional Challenges to Health Insurance Reform
February 2, 2011 | Topics: Health Law, Reform Implementation
Mark A. Hall, J.D.

This week’s decision by federal district Judge Roger Vinson in Pensacola, Florida, declaring the Affordable Care Act (ACA) unconstitutional is far and away the most prominent decision issued to date in this ongoing litigation. Because this lawsuit involves about half the states, it has received the most attention. But it is only one of about two dozen legal challenges across the country. Two other federal judges (in Detroit and in Lynchburg, Virginia) have upheld the law, and one other (in Richmond, Virginia) sided with Judge Vinson on the unconstitutionality of the individual mandate to obtain health insurance.1 Of the remaining suits, more than half have been dismissed on procedural grounds, and the rest await an initial decision.

The four decisions on the merits have split two to two, in line with the political party of the President who appointed each judge. As expected, Vinson agreed with the Richmond court’s reasoning that being uninsured does not entail economic activity and that therefore Congress cannot regulate this passive condition under the Constitution’s Commerce Clause. Both judges rejected the government’s reasoning, which was accepted by the Detroit and Lynchburg courts, that being uninsured is an active decision that affects how people pay for their health care. Vinson objected that this reasoning would also apply to the non-purchase of many other goods or services, and so it fails to provide the limiting principle on federal power envisioned by the Constitution’s “Founding Fathers.” Alluding to the significance of the Boston Tea Party in modern political debates, the judge explained that it “is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.”

Despite the Florida and Richmond courts’ agreement on the basic law, they differed dramatically over the appropriate remedy for the provision they deemed unconstitutional. Rather than severing and striking only the mandate, Vinson declared that Congress would not have enacted the ACA without the mandate, and thus the entire Act is void. Although he did not order an immediate halt to implementation work, he stated an expectation that the government “will adhere to the law as declared by the court.” Since several courts have issued divergent decisions, further analysis will be required to determine the import of this exhortation, but it is quite possible that the appellate court will suspend the legal force of Vinson’s decision until an appeal can be decided.

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In the ACA’s favor, there appears to be little realistic chance that the states’ principal argument in the Florida lawsuit will succeed. The states allege that the ACA coerces them to expand Medicaid and to implement insurance reforms, thereby violating their sovereign rights. Vinson (along with the Lynchburg court) firmly rejected these claims, noting that the ACA gives states ample prerogative to avoid establishing an insurance exchange. And if states wish, they can even withdraw from Medicaid. Although refusing Medicaid funds would be very expensive and politically difficult, the judge ruled that these facts do not constitute “coercion” or “commandeering” under the Constitution. These states’ rights arguments have also found very little support among constitutional scholars.4 Thus, we can expect appellate courts to easily dispose of them.

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http://healthpolicyandreform.nejm.org/?p=13706&query=TOC

Source Information
From Wake Forest University School of Law, Winston-Salem, NC.

© 2011 Massachusetts Medical Society.