By Alan Cooper
The Daily Record Newswire
If each of the 20 or more federal court challenges to the Patient Protection and Affordable Act is in a race to the U.S. Supreme Court, which is more likely to get there first?
The smart money is probably on a case from Michigan that’s already on its way to the 6th U.S. Circuit Court of Appeals. But pulling up fast is Virginia Attorney General Kenneth T. Cuccinelli’s challenge to the law that is before U.S. District Judge Henry E. Hudson, who heard cross motions for summary judgment on Oct. 18 and promised a ruling by the end of the year.
That would put Virginia v. Sebelius before the 4th U.S. Circuit Court of Appeals by early next year and one step ahead of perhaps the most closely watched of the cases, Florida v. U.S..
In the Florida case, Senior U.S. District Judge Roger Vinson earlier this month denied a motion to dismiss a challenge by 16 attorneys general and four governors on the pleadings. The next step there will be summary judgment briefing and arguments similar to what Hudson just heard.
Similar, but not the same. There are nuances to the cases that could make one more attractive than another to the Supreme Court.
Despite those nuances, the principal argument in each case focuses on different characterizations of the so-called individual mandate.
During the Oct. 18 arguments on Virginia v. Sebelius, Virginia Solicitor General E. Duncan Getchell Jr. argued the requirement that an individual have insurance or pay a penalty is beyond the authority the Commerce Clause gives to Congress. Never before has Congress attempted to command an individual to buy goods or services from another person, Getchell said.
Deputy U.S. Assistant General Ian H. Gershengorn responded that Getchell had misstated the issue.
Everyone is in the healthcare market and will incur the expense of medical care, he said. It’s a matter of whether they pay in advance or force taxpayers and those with insurance to pay their share of the cost, he said.
In dismissing the Michigan case on the pleadings, U.S. District Judge George Caram Steeh used the following language to agree with Gershengorn: “While plaintiffs describe the Commerce Clause power as reaching economic activity, the government’s characterization of the Commerce Clause reaching economic decisions is more accurate.”
Although Hudson did not tip his hand as to which way he is leaning, his questions for Gershengorn suggested that he might consider Steeh’s observation a bit too glib.
In his earlier opinion refusing to dismiss the case on the pleadings, Hudson said no case “has extended the Commerce Clause or the Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce.”
The reference to the tax clause was in response to the government’s contention that the penalty someone who opts not to purchase insurance will have to pay is in fact a tax, even though it is called a penalty in the PPACA and supporters of the bill insisted it was penalty and not a tax when it was before Congress.
The distinction is important because the government argued the individual mandate can be justified under its powers to impose a tax in addition to its authority to regulate commerce.
The government insists that the individual mandate is essential because other provisions of the law bar insurers from refusing to provide coverage because of pre-existing conditions or imposing lifetime caps on the amount of coverage.
Without the individual mandate, those provisions would discourage individuals from obtaining insurance until they are sick or injured, the government contends.
Getchell did not dispute that possibility or that the country’s healthcare system is in need of an overhaul. But those arguments don’t make the individual mandate constitutional. In fact, he said, Congress could have done a lot of things to regulate healthcare, but it chose the one thing it couldn’t do.
In remarks after the Oct. 18 federal court hearing, Cuccinelli indicated that he welcomed the opportunity to take on Congress.
“The Founding Fathers not only created checks and balances among the branches of government, but also between the states and the federal government,” he said. ”And from time to time, it is up to the states to remind the federal government of its constitutional bounds and to push back when it overreaches its authority. What we are doing today is precisely what the Constitution prescribes.”
