Tuesday, February 8, 2011

Health Care Lawsuit Score: US 2 - VA 1 and FL 1

UPDATE VIII: A leading constitutional law scholar states that "[g]iven the clear case for the health care law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court." Read The New York Times, On Health Care, Justice Will Prevail, which concludes:

"There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb."

As I said before, the new health care law is a political issue and the courts should have dismissed the challenges.

UPDATE VII: "[C]onservatives are fighting [because] they don't like the Affordable Care Act. And having failed to win that fight in Congress, they've moved it to the courts in the hopes that their allies on the bench will accomplish what their members in the Senate couldn't." Read the Washington Post, The fight over the individual mandate is not about liberty, which quotes Charles Fried, Ronald Reagan's former solicitor general, at Wednesday's Senate Judiciary Committee hearing:

"As I recall,the great debate was between this device and the government option. And the government option was described as being akin to socialism, and there was a point to that. But what’s striking is that nobody in the world could’ve argued that the government option or single-payer could’ve been unconstitutional. It could’ve been deplorable. It could’ve been regrettable. It could’ve been Eastern rather than Western European. But it would’ve been constitutional."

The article also quotes Daniel Foster, a conservative at the National Review:

"All conservatives, I'd imagine, think single-payer is unwise, but I’m sure plenty of them think it’s also constitutional (I’m probably one of them, as well)."

As I said before, the new health care law is a political issue and the courts should have dismissed the challenges.

UPDATE VI: "Among those who have joined in rejecting the century-old, long-defunct decisions on which Judge Roger Vinson's decision rests, are Justices Scalia, Kennedy, and Chief Justice Roberts. They will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional." Read American Constitution Society, In Today’s Health Care Ruling, a Whiff of Bush v. Gore.

UPDATE V: From the Washington Post:

UPDATE IV: Is "Vinson’s opinion is such an outlier that it will not be taken seriously by higher courts?" Review the Center for American Progress' Interactive Assessment: Judge Vinson’s Affordable Care Act Decision.

And for a further review of the decision, read HealthAffairs.org, Analyzing Judge Vinson’s Opinion Invalidating The ACA.

UPDATE III: How will the Supreme Court decide? That presumes that the Supreme Court ever hears the case, which is no certainty. And if it does, the Supreme Court has shown that it is in no hurry to constrain Congress. It recently turned down a constitutional challenge to a federal law which made it a crime for a felon to have body armor or a bulletproof vest. The defendant, Cedrick Alderman, argued that the possession of a bulletproof vest had nothing to do with interstate commerce and, therefore, was beyond Congress' power. Only Scalia and Thomas disagreed.

UPDATE II: "The nation needs health care reform. Repeal is not an option." Read the Clarion Ledger, Let's see the GOP health policy.

Funny thing is, 'Obamacare' looks a lot like the 1993 GOP Health Care proposal that included an individual mandate. Read Kaiser Health News, Summary Of A 1993 Republican Health Reform Plan.

Further, the individual mandate was 'at the heart of a strategy to limit "governmental rules and incentives to the extent necessary to achieve the objectives . . . [and] which would go on to be promoted by congressional Republicans, the Heritage Foundation, and Massachusetts Gov. Mitt Romney before being adopted by Democrats and becoming a bete noire of conservatives." Read the Washington Post, An interview with Mark Pauly, father of the individual mandate.

"[T]there is no such thing as “inactivity” or non-participation in the health care market."

Furthermore, although Republi-cons refused to listen and were 'shocked' to hear, "Charles Fried, a Harvard law professor who served as Ronald Reagan's solicitor general, [finds] the mandate easily constitutional."

Unfortunately, "[w]e've got the Democratic Party, whose top priority is to try and solve our health-care problems and who've shown their commitment to that by moving steadily rightward over the last century in a bid to pick up Republican support for some sort of solution, and the Republican Party, whose top priority is that we shouldn't do whatever the Democrats are proposing and have proven their commitment to that by abandoning previously favored policy proposals as soon as the Democrats demonstrated any interest in adopting them."

UPDATE: Read "a tightly reasoned paper dissecting the flawed argument that the so-called 'individual mandate' is an unconstitutional regulation of 'inactivity'":

UP Law Review, Commerce Clause Challenges to Health Care Reform

The opinion in the Fl lawsuit:
Florida Court Order, Health Care Law Unconstitutional

But as others have noted, "the rulings have been surprisingly political." Read The New Republic, Shocker: A Court Decision Tinged with Politics, like a "a Tea Party Manifesto."

And the judge's order "ignores precedent." Read The Volokh Conspiracy, The Weak Link in Judge Vinson’s Opinion Striking Down the Mandate and ACS, In Today’s Health Care Ruling, a Whiff of Bush v. Gore and Fla. Health Care Decision Reads Crucial Clause out of Constitution.

To read some of the other recent court documents, click here.

BTW, this is not the Judge's first health care lawsuit decision. Read Veterans Today, U.S. Dist Judge Roger Vinson Ruled Against 1,000s of Veterans in Infamous Med Bene Case and Forbes, America’s Military Vets Know Judge Roger Vinson-And They Don’t Like Him.

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