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Essential Component of Health Care Reform

By Dr. Clark Hinderleider
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On 23 March 2010 a lawsuit, one of several, against the Patient Protection and Affordable Care Act was filed in federal court of the Northern District of Florida, subsequently joined by sixteen state Attorneys General, four state Governors, two private citizens and the National Federation of Independent Business.  Senior Judge C. Roger Vinson, a southern jurist appointed by Ronald Reagan, has rendered a decision in this case: he dismissed four of the six counts.  He allowed arguments to be scheduled for 16 December 2010 on the remaining two counts, (I) “Challenge to individual mandate as exceeding Commerce Clause,” and (IV) “Coercion and commandeering as to Medicaid.”  He wrote, “...there is a widely recognized need to improve our healthcare system,” and “I have not attempted to determine whether the line between Constitutional and extraconstitutional government has been crossed.  I am only saying that (with respect to two of the particular causes of action discussed above) the plaintiffs have at least stated a plausible claim that the line has been crossed.”

Similar law suits have been dismissed: Maryland, 8 September 2010; California, 27 August.  On 18 October, arguments were heard to continue the Virginia case filed by the state’s Attorney General, Kenneth T. Cuccinelli, II, with a decision by year’s end; the amicus brief by Virginia Organizing is instructive. .” After the hearing, Ron Pollack, Executive Director of Families USA, said, “Today’s argument by the Attorney General represented political extremism and requested judicial activism run amok—

to the potential harm of families across America.”   The opinion, 2 August 2010, of US District Judge Henry E. Hudson, appointed by G.W. Bush, states,” While this case raises a host of complex constitutional issues, all seem to distill to te single question of whether or not Congress has the power to regulate—and tax—a citizen’s decision not to participate in interstate commerce.”

On 7 October 2010 Judge George C. Steeh of the US District Court for the Eastern District of Michigan wrote, in the case brought by the Thomas More Law Center for four individuals, having dismissed the two major claims in the lawsuit, namely, the  individual mandate and the penalty were unconstitutional, “Further consideration of plaintiffs’ application for injunctive relief is not necessary...[and the] plaintiff’s motion for preliminary injunction is denied.”   Judge Steeh notes that the individuals are uninsured and fear that, if forced “to pay a tax,” the money could be used to fund abortions.  The fact that they would rather pay a penalty than buy insurance, would indicate they plan to shift the cost of their own medical care to other citizens.  The Law Center is a right wing Christian organization espousing the usual agenda to fight the “cultural war being waged across American against Christians and their faith.”  It is quite obvious to any rational and knowledgeable observer that this effort does not relate to constitutional issues but to religious fanaticism and venality.

It is unfortunate that a partisan minority, having been outmaneuvered in the adversarial and democratic legislative process, now are using specious arguments to pursue “state nullification” in the federal courts and to seek juridical review of current and valid federal law.

On 10 March 2010 a bill passed in Virginia became law and states, “No resident of this Commonwealth...shall be required to obtain or maintain a policy of individual insurance coverage. No provision of this title shall render a resident of this Commonwealth liable for any penalty...”  The Cuccinelli challenge [v.s.] is also meant as a defense of this law. The US Constitution (VI, 2) states, “This Constitution, and the Laws of the United States...shall be the supreme Law of the Land...any Thing in the Constitution or Law of any State to the Contrary notwithstanding.”  As Jost observes in his paper, “nullification laws are pure political theater.” He further writes,

“But achieving this aim [to block the implementation of a federal mandate requiring all individuals to carry health insurance] is constitutionally impossible.”  He concludes,

“These resistance efforts are not about law—they are about politics.  But of course at this point, health care reform is only about politics, except insofar as it is about the morality of equal treatment for all.”

On 17 May 2010 the US Supreme Court decided a criminal case, US v. Comstock, which could affect the current lawsuits.  The justices voted 7-2 to give Congress “broad authority” to enact all laws that are “rationally related” to carrying out its constitutional power.  The Constitution not only gives the Congress the power to regulate interstate commerce but the authority to enact any law “necessary and proper” to effect this authority.  Justice Stephen G. Breyer wrote, the “choice of means” for carrying out its goals is left “primarily...to the judgment of Congress.”

The administration has said it plans to defend the mandate as a necessary means of regulating the cost of health insurance nationwide.

As the fact of the individual mandate is, apparently, problematic for those seeking to challenge the PPACA, there are two Health Policy Briefs which can provide a beginning to being informed about this concept.  Although both were published before March, 2010, “Individual Responsibility” and its update, “Individual Mandate,” contain essential, basic information and arguments and include a summary of the Massachusetts state plan  for comparison.  We shall discuss “constitutional suppositions” in our next posting.

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