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Health Care Scorecard: Two Federal Judges for the Law, Two Against

4 years ago
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Ten months after its historic passage, four federal trial judges have evaluated the Patient Protection and Affordable Care Act of 2010. The two Republican appointees who have looked at the health care reform law have deemed it unconstitutional -- an unlawful overextension of congressional power. But the two Democratic appointees who have looked at the law have declared it constitutional -- a rational expression of Congress' authority to regulate a form of commerce. How could the same statutory language and legal precedent generate such disparate conclusions?

The best likely explanation is the most simple: the language of the Constitution and Supreme Court precedent on the topic have left enough ambiguity to permit wildly different interpretations from the lower court judges.

Article I, Section 8, Clause 3 of the Constitution tells us that the Congress "shall have regulate Commerce... among the several states." This vague command has been interpreted over the past 200 years or so to permit federal regulation over activity so long as that activity "substantially affects" (has a substantial effect upon) interstate commerce. So what does "activity" really mean? And what does "substantial effect" mean? Judging from the early results, the answer reads like the old lawyer joke: ask four judges for their views and you'll get five opinions.

On Monday, U.S. District Judge Roger Vinson, a 1983 Reagan appointee now sitting with senior status in the Northern District of Florida, ruled that the Affordable Care Act is unconstitutional because it seeks to regulate inactivity-- an individual's choice not to buy health insurance. There is a legal difference, Vinson wrote, between economic decisions, which all of us make at one point or another in our lives, and economic activities which might be regulated under the Commerce Clause if they "substantially affect interstate commerce." In his view, the Act sought to regulate the first, and not the second, and thus failed. At least that's where this judge wiggled to in the room left for him in the Constitution and Supreme Court precedent.

But another judge wiggled over to a completely different spot. In November, U.S. District Judge Norman K. Moon, a 1997 Clinton appointee now sitting with senior status in the Western District of Virginia, ruled the Act constitutional because it involves activity. Moon wrote: "Regardless of whether one relies on an insurance policy, one's savings, or the backstop of free or reduced-cost emergency room services, one has made a choice regarding the method of payment for the health care services one expects to receive. Far from 'inactivity,' by choosing to forgo insurance, 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." One of these veteran judges, of course, will in turn be judged dead wrong by the United States Supreme Court.

Another Republican judge, U.S. District Judge Henry Hudson of Virginia, an appointee of George W. Bush, determined that the Act seeks to take Commerce Clause jurisprudence to a place where it has never gone before -- a "bridge too far" is how Vinson put it Monday. But Democratic U.S. District Judge George Steeh of Michigan, also a Clinton appointee, concluded that the Act fits comfortably within existing legal precedent. The Republican jurists claim they are acting with judicial restraint even as they assert their authority to strike down an act of Congress. The Democratic jurists claim they are acting with judicial deference even as they endorse another application of the Commerce Clause.

The Republican judges have blocked the measure because they believe its future application lacks logic and consistency -- that if the Congress can regulate a decision about individual health insurance there's no stopping what it can regulate. Both Vinson and Hudson wrote about the possible parade of legislative horribles if the Act were declared constitutional. The Democratic jurists have endorsed the measure because they believe it is a rational legislative effort to confront a current national problem. No one is seeking to force someone to eat french fries, Steeh and Moon have argued, and no one ever will.

All four judges agree -- either explicitly or implicitly in their rulings -- that they will not have the final say on the constitutionality of the Affordable Care Act. Like the rest of us, they know that this dispute is going to the Supreme Court and will be decided by the justices, who are just as ideologically riven as the four trial judges appear to be. This is especially true in these cases since they each have been addressed on motions and short of trial. This means that the appellate judges, and especially the justices in Washington, don't have to give any "due deference" to these trial court "findings."

We'll know in a year or so which of these lower court judges correctly evaluated constitutional law in light of what they each think the Supreme Court will think of the matter. Two of these jurists will be vindicated. Two will be relegated. And perhaps that's the real lesson in all of this: in an age where the Constitution has become a political football, it's really still just what the federal courts say it is at any given time. That's not a terribly noble thought. But it's the truth.

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Do not worry out there. I am sure that the supreme court will vote along party lines without regard to what is written in the constitution. As the lower courts have done so will they. I have also read through many of the comments here and see the same thyme going through all. I do get a laugh out of the comments when they mention that they are working for a large business but then never mention the businesses name. Have seen that so many times. Just words with nothing to back them up. Oh well. The next two years in Washington will be interesting.

February 02 2011 at 10:05 PM Report abuse +11 rate up rate down Reply
dc walker

.for forty five years I paid into Blue Cross and blue shield, last month I was forced to get a Medicare card (I also had medicare taken out of my earnings). I did not want Medicare because I heard the doctors don't take medicare patients or give the same kind of care so today I have two health care plans, BCBS and Medicare which costs me an extra 155.00 a month. This is madness why can't Medicare be voluntary. If you hit 65 and have no insurance then you pay the 155.00 and leave everyone else alone.

February 02 2011 at 9:56 PM Report abuse -13 rate up rate down Reply

There are so many great things in the Health Reform Bill. Why are the republicans using every method to try to overturn it. They seem to be totally beholden to the health insurance industry.

February 02 2011 at 7:22 PM Report abuse +10 rate up rate down Reply

klovepr9:41 AM Feb 2, 2011 Oh now that's really funny. Obama has been in office for TWO YEARS and spent trillions of dollars creating "shovel ready jobs," yet you expect the Republicans to do it in a month? Have you noticed how the stock market has jumped since they took over in January? The jobs are coming you dole...............................If anything is funny it is this lame excuse of a post of yours. First off what proof do you have that trillions of dollars hace been spent on shovel ready jobs? Your source please? And with the republicans in the senate blocking every piece of positive jobs legislation this president and the US house has already passed how was any money spent at all let along trillions? An wasn't it Boehner who went around all summer hollering where are the jobs? Then he campaigned on jobs jobs jobs. This would be his congresses number 1 priority. We will focus on this like a lazor. Four weeks later still no jobs or mention of them. All they are doing is trying to undo legislation that has already been done knowing fool well that it is a lost cause and doing this to deflect from the fact that they have no ideas about jobs creation or anything else. So spin alll you want but the only thing funny is your post.

February 02 2011 at 5:47 PM Report abuse +5 rate up rate down Reply

I work for one of the largest non-government employers in the US. I took this part time job in order to get a better track to a full time job in the company. I just got on the internal job postings and found 286 jobs available - only two were full time. The rest vary between 15-20 hours a week. Why - according to one HR rep, the company cannot afford the cost associated with what is coming down the pike for health care and taxes when it comes to expanding and hiring full time employees. They feel they are better off with part-timers. Thanks a lot Barry.

February 02 2011 at 4:43 PM Report abuse -11 rate up rate down Reply
1 reply to wilsonkoi's comment

This is true. A company does not have to offer any benefits for part time. They can list you as temp or part time for as long as they like and you could even get called in to work more the 40 hours a week but as long as you are listed as part time they do not have to meet full time requirements. This bill will cause many companies to use this method or even goes as far as to divide the corporation into smaller corporations with so many people per get under the 50 person limit this bill has .

February 02 2011 at 5:06 PM Report abuse -12 rate up rate down Reply

The Founding Fathers declared that we are "endowed with unalienable rights, among them are Life, Liberty and the pursuit of Happiness." (1) There is no question that in order to have life we must have health. Yet there has been only limited constitutional language specific to this right. The "cruel and unusual punishment" clause of the 8th Amendment to the Constitution has been interpreted by the Supreme Court to require prisoners, as part of their humane treatment during detention, to be guaranteed the right to health care. (2) Currently prisoners are the only group who are specifically granted the right to health care. It is probable that the founders of our country, if they could have predicted the importance of health care, would have granted that the same standard of humane treatment be extended to every citizen.

February 02 2011 at 4:07 PM Report abuse -4 rate up rate down Reply
1 reply to agiacomo15's comment

You must have found the Constitutional right to health care in the same penumbras and emanations as the Supreme Court in Roe v. Wade.

February 02 2011 at 5:32 PM Report abuse +2 rate up rate down Reply

The score card means nothing. It does not matter if the supreme court has to rule on one appeal or all four. Their out come will apply to all appeals ans any future actions. The findings of the US supreme court are final. This bill will be repealed for being unconstitutional.You can not force all people and or companies to buy into anything. Those that compare it to car insurance are wrong. You do not have to have car insurance until you decide to register and drive a car on public streets. This states you have to have healthcare insurance just for breathing and it does not matter if you can afford it or not.This bill is a natural job killer.Example: My company can not afford to provide healthcare insurance the costs would put the company out of business. This company will now be penalized for not offering coverage. The company now lays off more people to cover that cost. Fact it is cheaper for a company to work with less employees and pay overtime then it is to add workers.

February 02 2011 at 1:26 PM Report abuse -10 rate up rate down Reply

The Federal Government told the southern state they couldn't have slaves. The federal government told individual they must send their children to school. Now the federal Government is telling the people to get health insurance.

February 02 2011 at 1:03 PM Report abuse -4 rate up rate down Reply

Just you wait! This abomination of a "LAW" will be declared Un-Constitutional! Why? Because the Supreme Court will say so in a 6-4 decision! One of those ladies will seek out the truth of our Great Constitution!

February 02 2011 at 12:11 PM Report abuse -5 rate up rate down Reply
1 reply to oaklane13's comment

Two years ago Obama verbally attacks a Supreme Court that is essentially defenseless. Wow, that takes a lot of courage Mr. President, what goes around comes around. I predict the vote will be 7-2.

February 02 2011 at 3:48 PM Report abuse -12 rate up rate down Reply

Well, lets get it right. Some 8 courts dismissed out of hand, and 4 went on to rule. So its not 2 vs 2. Its only 2 v 2 when an opinion was issued. As usual, the so called conservatives ignore reality for theory. People do not choose whether to see the Doctor, when they are sick. They go. And that's commerce. Its nonsense to compare health care with french fries, and the judge that did so, lacks intellectual honesty and rigor. This is about cost shifting. No one can pay for health care our of pocket unless you're an investment banker. So, the issue is how to pay for it. People will not stay home and chose not to go to the hospital or the Doctor. And if they cannot pay, then someone else does, usually the tax payer. To say that this is compelling people to pay for something they don't want is ludicrous. This is forcing people to participate in health care coverage and not allowing them to shift cost to the taxpayer.

February 02 2011 at 12:04 PM Report abuse -18 rate up rate down Reply
1 reply to killkubota's comment

This bill does nothing to address the problems that cause it to be non affordable. Why should a family be forced to pay 600.00 or more a month for something they may never use, and prevent them from providing a nice home to raise their children, prevent people from buying a new car since they will not be able to afford all the payments, not being able to take a vacation at the sure like their parents did for them. Make this crap affordable and you would not have to make a mandate. 200.00 per month or less. So go back to work and when you meet that demand by the people then come and talk to us.

February 02 2011 at 12:33 PM Report abuse -12 rate up rate down Reply

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