Since my last post on the legal machinations with ACA, there has been a poorly crafted ruling that I shall discuss. To date there are some 22 cases with the following tabulation:
Court decisions pending: 13 cases
Court dismissed for lack of standing or procedural problems: 3 cases
Court ruled law constitutional and dismissed case: 3 cases
Court overturned law or part of law: 2 cases
Court dismissed but gave plaintiff right to refile: 1 case
The last case above was decided by a G.W. Bush appointed District Judge for the Southern District of Mississippi on 3 February 2011. Judge Keith Starret states, “Plaintiffs’ First Amended Petition contains insufficient allegations to establish that they will certainly be ‘applicable individuals’ who must comply with the minimum coverage provision.” He wrote, “The Court is not persuaded by this argument [legal decision to be put off until the provision is actually implemented] for the same reasons stated by the United States District Court for the Northern District of Florida.” He then concluded, “...the Court finds the ten primary Plaintiffs have not pleaded sufficient facts to establish that they have standing to challenge the Constitutionality of the minimum essential coverage provision of the PPACA.”
On 31 January 2011, U.S. District Judge Roger Vinson not only found, “The individual mandate is outside Congress’ Commerce power, and it cannot be otherwise authorized by an assertion of power under the Necessary and Proper Clause. It is not Constitutional,” and “Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.” He is the only judge to take this action. This radical decision was subsequently clarified by the same judge to allow the implementation of the PPACA to proceed pending appellate action, but he hectored the Justice Department to file for an expedited appeal.
Stephanie Cutter, Assistant to the President and Deputy Senior Advisor, stated, “We don’t believe this kind of judicial activism will be upheld and we are confident the Affordable Care Act will ultimately be declared constitutional by the courts.”
Professor Mark Hall whose article, “Commerce Clause Challenges to Health Care Reform” will be published in the University of Pennsylvania Law Review presents arguments regarding the use of federal power under the Commerce Clause to mandate the purchase of health insurance.
He also writes, “...the most striking aspect of Judge Vinson’s ruling is not its remedy—striking the Affordable Care Act in its entirety―but the impression one gets that the opinion was written in part as a Tea Party Manifesto.”
Vinson, in his assertion that there is no severability possible, writes, in footnote 27, “In considering this issue, I will at times borrow heavily from one of the amicus briefs filed in the case for it quite cogently and effectively sets for the applicable standard and governing analysis of severability (doc. 123).” This is telling proof of Vinson’s unsuitable bias as the brief was written by the Family Research Council, a far right, fundamentalist religious cadre. The Council has been identified as “hate group” by the Southern Poverty Law Center.
Further, Vinson ignores the decision by the Supreme Court in the last term which emphasizes restraint in the matter of severability limiting the solution to the problem, severing any problematic portions while leaving the remainder intact. Chief Justice John Roberts noted, “Because the unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions, the ‘normal rule’ is ‘that partial, rather than facial, invalidation is the required course.’”
It is appropriate to contrast Vinson’s flawed ruling with that of District Judge Gladys Kessler for the District of Columbia, who is the third judge to uphold the ACA. She writes, “[T]he Court finds that Congress had a rational basis for its conclusion that the aggregate of individual decisions not to purchase health insurance substantially affects the national insurance market. Consequently, Congress was acting within the bounds of its Commerce Clause power when it enacted § 1501 in order, as Chief Justice Marshall said, ‘to prescribe the rule by which [interstate] commerce is to be governed.’” Further, “Thus, the Court reaffirms its conclusion that Congress acted within the bounds of its Commerce Clause power, especially when considering the Necessary and Proper Clause when it enacted § 1501.” She adds, “It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not ‘acting,’ especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.”
Judge also dealt with an extraneous issue in this suit: the claim that the law restricted the plaintiffs’ exercise of religious freedom as “§ 1501’s minimum essential coverage requirements conflicts with their Christian faith because it requires them to perform an act that implies that they doubt God’s ability to provide for their health.” The plaintiffs alleged that this violated Religious Freedom Restoration Act, which prohibits the government from substantially burdening someone’s exercise of religion. It is noted that these plaintiffs were represent by a religious right coterie, American Center for Law and Justice. Judge Kessler ruled, “Consequently, the Court concludes that (1) § 1501 does not place substantial burden on the exercise of Plaintiffs’ Christian faith, and (2), even if it does, it is the least restrictive means of serving a compelling governmental interest.”
Concluding remarks will appear in the next posting.