This morning, a federal court in Pensacola, Florida will consider the government’s motion to dismiss the 20-state challenge to the national health care reform law. Last night, Florida Attorney General appeared on Fox News’ Greta Van Susteren to talk up his suit and predicted that the states will have standing to challenge the law — a legal term meaning that they have actually been injured in some way by the law being challenged. You can watch McCollum’s appearance here and read Florida’s arguments here, but most experts have serious questions about the state’s standing and the broader challenge. Their arguments boil down to this:
1) No standing: States don’t have the standing to challenge the individual mandate because they will never have to pay a penalty or take out insurance. The two individual plaintiffs that have been added to the Florida case are also irrelevant because they demonstrate no current injury. The provision does not take effect for another four years and any har is merely speculative. What’s more, the plaintiff’s insurance status could change between now and 2014 — ensuring that they don’t have to pay a penalty for not purchasing coverage.
2) Can’t get around the Anti-Injunction Act: The Anti-Injunction Act, forbids courts from “restraining the assessment or collection of any [federal] tax.” Since the plaintiffs themselves allege that the penalty under the mandate is an “unconstitutional tax,” they recognize that they fall within the scope of the Act.
3) Insurance = commerce: Congress can regulate commerce: Congress has determined that the individual mandate is an essential part of this larger regulation of economic activity, and that its absence would undercut Federal regulation of the health insurance market. Even the failure to buy a product constitutes commerce because individuals who do not carry insurance are participants in the health care market and end up receiving treatments from traditional providers for which they either do not pay or pay very little. Congress found that the cost of providing uncompensated care for the uninsured was $43 billion in 2008.
4) Falls under ‘Necessary and Proper’ clause: The Constitution gives Congress the power “[t]o make all laws which shall be necessary and proper for carrying into execution” its power to regulate interstate commerce. As Justice Scalia explains, this means that “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” The minimum coverage provision is constitutional under this Scalia test, even if it were not valid as part of Congress’s power to regulate commerce. This is because the minimum coverage provision is essential to ensuring that the entire ACA works effectively.
5) Congress has the authority to collect taxes: Congress also has the authority to “lay and collect taxes” under the Constitution, and this power to tax includes upholding the individual. “The provision works by raising an additional income tax off of most individuals who do not carry health insurance — taxpayers who refuse insurance must pay more in taxes, while those who do carry insurance are exempt from this new tax.”
Of course, McCollum has filed his lawsuit in one of the more conservative courts in the state and so it’s difficult to know how the court will rule. If the case does move forward, McCollum’s likely successor, Republican Attorney General Pam Bondi has promised to continue with the challenge. Democratic challenger Dan Gelber disputed the wisdom of that position.
“There are four million people without health care in our state… everybody agrees this was not the most perfect bill that’s ever passed. But I am not going to take the resources of this office that are so desperately needed to solve some of the pressing security issues of our state and dedicate them to what I think ultimately really was a politically motivated lawsuit that was spawned out of a primary battle and that, ultimately, I don’t think has a whole lot of merit when it gets to the Supreme Court, which I think it will,” he told Van Susteren. “But I do think if you don’t like the bill, Miss Bondi should run for the Congress, where she can, as a legislator, fix it in the next legislative session,” he said. “You shouldn’t go after it in what I think is going to be ultimately a very frivolous lawsuit.”
An update on today’s proceedings:
A federal judge in Florida says he likely will let go to trial portions of a lawsuit by Florida and 19 other states challenging the president’s health-care overhaul as unconstitutional. But U.S. District Judge Roger Vinson said at a Tuesday hearing in Pensacola that he expects to dismiss other parts.
,Politico’s Jennifer Haberkorn has more:
U.S. District Judge Roger Vinson scheduled oral arguments to begin Dec. 16 in Pensacola, Fla., but did not say which parts of the lawsuit he will approve. Vinson said he plans to issue a complete ruling by Oct. 14.
,Key quotes from U.S. District Judge Roger Vinson in this Bloomberg story:
“The states are left almost powerless to affect Congress,” Vinson said. “It’s enforced upon them whether they like it or not.” […]
Vinson questioned whether people who don’t buy health care can be considered to be actively participating in commerce and can be taxed for it. The U.S. has previously claimed that the possibility of being injured and an inability to pay one’s medical bills are enough to draw a link between commerce and taxation.
“You’re trying to turn the word upside down and say activity is the equivalent of inactivity,” Vinson said.