For those of you keeping score at home, the tally now is now 2-2.
When a federal judge in Virginia Tuesday tossed out
the latest challenge to the new health care law, a challenge brought by Jerry Falwell's Liberty University among others, it marked the fourth time in four months that the nation's judiciary had chimed in on the constitutionality of the controversial measures. Twice, in cases in Michigan and now in Virginia, federal trial judges have upheld the new law as a proper exercise of congressional power under the "Commerce Clause" of the Constitution. Twice, in cases in Virginia and Florida
, federal trial judges have allowed legal challenges
to continue apace toward trial, implying if not outright declaring that the law places unconstitutional burdens on states and individuals.
The two judges who have allowed health care challenges to proceed are Republican appointees. The two judges who have dismissed those challenges are Democratic appointees. Soon, the federal appellate courts will get involved. We'll start seeing divided panels and disputes among the circuits -- all essentially focusing upon the same handful of legal points that make up the gravamen of the dispute here: does the Congress have the power to do what it did? And did it exercise that power in a constitutional manner?
And then, in a year or two, when there is a sufficient smattering of lower court rulings, when the record has been fleshed out a bit, the United States Supreme Court will step in and resolve the dispute now brewing at the lower court level. Barring any changes to the Court's personnel, swing-vote specialist Justice Anthony Kennedy, as he so often does, will likely decide
the fate of the Patient Protection and Affordable Health Care Act of 2009. And he will likely do so in 2012, just in time for the next presidential election.
Until then, we are left to read the widely scattered and contradictory tea leaves. On Tuesday afternoon, U.S. District Judge Norman K. Moon, a Clinton appointee, was direct
in telling Liberty University and several individual plaintiffs that they had no case worthy of being brought to trial. "I hold," he wrote, "that there is a rational basis for Congress to conclude that individuals' decisions about how and when to pay for health care are activities that in the aggregate substantially affect the interstate health care market." By "choosing to forgo insurance," Judge Moon wrote, the individual plaintiffs "are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance."
Judge Moon also roundly rejected the plaintiffs' (so far) unique argument that the federal health care measure violates their religious rights under the First Amendment by forcing them, for example, through mandatory insurance payments, to bear the costs of abortions. They failed, the judge wrote, even "to allege how any payments required under the Act, whether fines, fees, taxes or the cost of the policy, would be used to fund abortion." On the contrary, the judge noted, the Act contained "strict safeguards at multiple levels to prevent federal funds from being used to pay for abortion services . . . " This First Amendment wrinkle, which best distinguishes the Liberty University case from the three that have preceded it, is the argument least likely to gain any traction when these cases begin to hit the appellate courts sometime next year.
But first more hearings at the trial court level. The next big milestone on the Act's long journey through the courts will come in two weeks, on Dec. 16, when there is a substantial hearing in the Florida health care lawsuit
. In that case, U.S. District Judge Roger Vinson, a Reagan appointee, presides. He'll likely have another order published around the same time that Liberty University has perfected its appeal of Judge Moon's ruling; around the same time that yet another federal trial judge somewhere has chimed in as well on the validity of the Act.