- The Washington Times
Thursday, October 14, 2010

A federal court judge in Florida ruled Thursday that key portions of a lawsuit challenging the Obama administration’s health care reform law can go forward, and accused the Justice Department of taking an ‘Alice-in-Wonderland’ approach to its defense of the controversial “penalty” for people who don’t buy insurance.

Though it’s just a preliminary ruling, Senior U.S. District Judge Roger Vinson’s decision to let the case proceed is a victory for opponents of the law, since it means he will ultimately decide the merits of the challenge brought by 20 states.

Judge Vinson said the states can challenge the constitutionality of whether provisions in the law violate state sovereignty through expansion of the Medicaid program and if Congress exceeded its authority by forcing people to obtain health insurance or pay a penalty.

Judge Vinson questioned whether lawmakers called the provision a “penalty” instead of a “tax” simply to avoid political blowback.

“Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an ‘Alice-in-Wonderland’ tack and argue in court that Congress really meant something else entirely,” wrote Judge Vinson, a 1983 appointee of President Reagan.

The 20 states argue that the penalty imposed for failing to obtain health insurance, a provision of the law that goes into effect in 2014, exceeds Congress’ power through the Constitution’s Commerce Clause. The Justice Department, in turn, argued that Congress’ authority to impose the penalty comes from its broader authority to collect taxes.

“This ruling confirms the significance of this lawsuit in protecting against the federal health care act’s intrusions on individual liberty and limited government,” said Florida Attorney General Bill McCollum, a former congressman who filed the constitutional challenge. He applauded the judge’s decision.

During the legislative debate the Obama administration repeatedly denied the penalty amounted to a tax, but changed its tune when the time came to defend the law in the courts. Administration lawyers concluded the taxing power in the Constitution is broader than the government’s ability to regulate interstate commerce, and therefore more likely to be upheld as a valid exercise of federal powers.

Judge Vinson did agree with the Obama administration, however, in dismissing several other challenges, such as the assertion that the law interferes with the sovereignty of the states on the grounds that they are large employers. In all, Judge Vinson dismissed four of the six counts in the case, ensuring a lengthy battle that likely is headed to the Supreme Court.

Tracy Schmaler, a spokeswoman for the Justice Department, which represents the administration in the case, acknowledged disappointment that Judge Vinson did not dismiss the entire case.

“The judge saved for another day the decision on the merits of two claims, and we remain confident that the law ultimately will be upheld,” she said. “This case is in the early stages of litigation and the department will continue to vigorously defend this law.”

The judge, in a 65-page ruling from Pensacola, made clear that his decision in response to a motion by the Obama administration to dismiss only addresses whether the court has jurisdiction to consider the case and that the suit makes a “plausible claim for relief,” not the merits of the arguments.

Stephanie Cutter, an assistant to President Obama for special projects, wrote in a blog posting on the White House website, that the administration expects it ultimately will win the case.

“Since the enactment of health reform legislation in March, Republican attorneys general in several states have filed lawsuits challenging the constitutionality of the Affordable Care Act,” she wrote. “Having failed in the legislative arena, opponents of reform are now turning to the courts in an attempt to overturn the work of the democratically elected branches of government.

“This is nothing new,” she wrote. “We saw this with the Social Security Act, the Civil Rights Act and the Voting Rights Act - constitutional challenges were brought to all three of these monumental pieces of legislation, and all of those challenges failed. So too will the challenge to health reform.”

Though there have been several others, the challenge to the law brought by the 20 states is the most expansive.

In federal court in Virginia, the state separately is challenging the law on the basis it conflicts with a state law passed by the general assembly earlier this year that says people in Virginia cannot be forced to purchase health insurance.

Last week, a federal judge in Michigan dismissed portions of a lawsuit brought by the conservative Thomas More Law Center that argued Congress exceeded its authority by forcing people to buy health insurance.

Ms. Schmaler, referred to the Michigan ruling in a statement released Thursday, saying “the only court that has decided the constitutionality of this law has sustained it and found that the minimum coverage provision was a reasonable step for Congress to take in reforming the nation’s health care system.”

But Karen Harned, executive director of the National Federation of Independent Business, said Judge Vinson’s ruling moved those challenging the law “one step closer” to having it overturned. The NFIB is a party in the case.

“NFIB is pleased Judge Vinson ruled in favor of allowing our case to move forward. It is critical to small business owners and all Americans for the court to weigh in on the important constitutional questions at the heart of our lawsuit over the individual mandate,” Ms. Harned said.

“Judge Vinson correctly recognized that the individual mandate, which forces all Americans to purchase health insurance, whether they want it or not gives the federal government an unprecedented amount of power over our individual lives,” she said.

In a footnote, Judge Vinson quotes from Lewis Carroll’s classic “Through the Looking-Glass:”

c “When I use a word, Humpty Dumpty said, in a rather scornful tone, it means just what I choose it to mean - neither more or less. The question is, said Alice, whether you can make words mean so many different things.”

Along with Florida, the other states involved in the case are Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Dakota, South Dakota, Pennsylvania, South Carolina, Texas, Utah and Washington.

• Ben Conery can be reached at bconery@washingtontimes.com.

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