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Federal judge hears suit against health care law

Rosalind Helderman

A federal judge in Virginia will hear arguments Monday on whether the new federal health-care law is unconstitutional.

Virginia Attorney Gen. Ken Cuccinelli II (R) will argue that Congress overstepped its constitutional authority by enacting a provision that requires individuals to purchase health insurance by 2014 or pay a fine. Lawyers for President Obama will tell the judge that the individual insurance mandate falls within Congress' constitutional authority to regulate interstate commerce.

The lawsuit is one of more than 15 filed across the country challenging the health-care law and one of two state-level attempts to kill the law in the courts. A separate suit filed jointly by 20 states in Florida is moving somewhat more slowly through the court system. A judge ruled Friday that the Florida suit can proceed to trial.

Eastern District of Virginia Judge Henry E. Hudson already rejected a motion from the federal government asking that he dismiss the Virginia case. In a hearing that begins at 9 a.m. Monday, Hudson will hear several hours of arguments directly on the case's merits.

Hudson is not expected to issue a ruling in the case Monday, but he may indicate when he plans to rule. And he will question lawyers for both sides. The tone and substance of the queries may give some indication of how he views the constitutional dispute.

If Hudson, who was appointed to the bench in 2002 by President Bush, were to rule that the sweeping law is unconstitutional, its national implementation would be halted. However, the Obama administration would likely seek a stay of the ruling while it pursued appeals. Both sides have said they believe the law's constitutionality will ultimately be resolved by the United States Supreme Court.

In written briefings, Cuccinelli's lawyers have argued that it would unprecedented to allow Congress to force an individual to make a purchase. Failure to buy insurance, they argue, represents the absence of economic activity and therefore cannot be regulated by Congress as commerce.

U.S. Justice Department lawyers, acting on behalf of Secretary of Health and Human Services Kathleen Sebelius, have countered that a person who decides not to buy insurance has made an economic decision that influences the health care market and can thus be regulated as commerce.

When such people become sick or are injured, the cost of their care is absorbed by the vast health market, lawyers for the federal government say. They also argue that the insurance mandate is key to other provisions of the health-care law. Bringing more healthy premium payers into insurance pools, for instance, will help industry pay the costs of extending insurance to those with pre-existing health conditions, another of the law's requirements.

At the July hearing, Hudson seemed skeptical of the federal government's arguments. However, at that phase of the case, the burden was on Justice Department lawyers to show that the Virginia suit was so without merit that it should be tossed from court. In Monday's hearing, the burden has shifted to Cuccinelli to show that the law is unconstitutional.

By Rosalind Helderman  | October 18, 2010; 6:00 AM ET
Categories:  Barack Obama, Ken Cuccinelli, Rosalind Helderman  
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Next: Federal judge says he'll rule on Virginia's health care challenge by Jan. 1


I think it’s unconstitutional to penalize people to buy a health insurance when most likely the reason is because they couldn’t afford to pay for the premiums. I’ve heard of client saying sometimes it boils down to choosing to pay for rent or their premiums. This is a big problem for people who are making some money but not enough ‘coz this makes them too rich for plans like Medicaid but also too poor o purchase other state-run plans like Healthy NY.Unless the government could provide these people with a comprehensive health coverage within their reach, only then could they penalize people who still choose not to have health care.

Posted by: funlol | October 18, 2010 12:10 PM | Report abuse

I am really disappointed at VA AG for this case. Myself, I have had insurance almost all of my 60 years of adult life. Part of the time I worked for a defense plant, and everybody there was required to buy insurance.

I never heard anyone complain. It wasn't expensive because the risk was low.

After all that is what insurance is for. It cuts the risk. If everybody joins it will lower cost for everyone.

I almost never went to the doctor for most of those years unless my workplace required a physical. Of course I would have saved money if I hadn't bought insurance. I was healthy, and members of my family were known for long living. But, I had insurance anyway.

Good thing. Since my retirement, I have had two lifesaving operations. But, I am still solvent because of good insurance.

But if I was to add up all that I have paid in, it would probably be about the same as I my medical bills. I still pay 7200 dollars per year for medicare and retirement deductions.

I don't understand how we can be against abortion, against leaving miners in the mine in Chile but not care about the 30 or 40 million people who don't have insurance.

We seem to be a nation that says, "I have mine, to heck with you." Even religions seem to think this way at times.


Posted by: LL314 | October 18, 2010 12:11 PM | Report abuse


I listened to the whole thing last summer on c-span2. There are provisions in the law such as how much you have to pay. Older folks, like myself, will pay more because we are more likely to be as healthy.

There are also poverty considerations in the bill, so it won't hurt some of these people as much as they think it will.

But if you don't have insurance, and you go to the emergency room, they will collect from you if they can. But if you don't have insurance, the cost of a hospital stay will be much higher than for those in a big risk pool. Because the insurance provider generally pays an agreed price. But a person with no insurance has no bargaining power.

The health care law is designed to add you to a bargaining pool that will cut your costs.

Posted by: LL314 | October 18, 2010 12:26 PM | Report abuse

First, there is ample legal precedent set forth in rulings made by the Supreme Court, that should leave the judge no choice but to rule in favor of the Obama administration. Second, if the courts do eventually rule against Obama, it will not be long before someone makes the argument that carries the oppositions logic to its most extreme: that no one without insurance should receive medical care unless they demonstrate ahead of time the ability to pay in full.

The opposition in all of the cases currently in litigation all share one main argument. They argue that failure to purchase something is not economic activity, and thus congress does not have the power to issue a mandate to purchase insurance. However, in Wickard v. Filburn, the SCOTUS ruled that an item did not need to enter into trade to have an effect on commerce. Though the circumstances of the Wickard case are different than this suit the premise, that commercial inactivity is not commerce and thus cannot be regulated, was the same, and the ruling fell exactly in line with the arguments of the administration lawyers.

The other argument by administration lawyers, that the mandate is a key part of other provisions in the legislation, also has substantial legal backing in rulings made by the SCOTUS, including one in which current conservative judges wrote the opinions. In Gonzales v. Raich, current justices Kennedy and Scalia were in the majority that ruled that congress may regulate a good, even if it is non-economic (never enters commerce) and intrastate, if it does so as part of a complete scheme of legislation designed to regulate Interstate Commerce. The ruling was made in regards to US drug policy concerning marijuana which the defendants grew at home and used for personal use. A large factor in the decision in that case was the fact that the federal law whose constitutionality was in question was a key aspect in federal drug law. So again, the administrations arguments seem to be well backed by legal precedent, and on this particular point they even have precedent in the form of rulings written by justices that the legislations opponents would think are on their ideological side.

Missing from the debate however, is one key fact. The legislation is not attempting to regulate the health insurance industry, it is attempting to regulate the health care industry, of which the insurance industry is only one of many pieces. This distinction is key. Were the insurance industry in question the fire insurance industry, things might be different. Ones decision or failure to purchase fire insurance on your house might end there. You may have a fire and you may not, and if you do have a fire it will not significantly impact the cost of premiums of others with fire insurance.


Posted by: johnqpublic1 | October 18, 2010 9:22 PM | Report abuse

Not so with health insurance. Unlike fire insurance, where you are much less likely to have a fire than not have one, with health insurance you are guaranteed to use it, likely often, and the cost of the health care you receive has a direct and immediate impact not only on the cost of insurance of others, but on the general health of the population. Thus, a mandate to purchase insurance is not a mandate to purchase a specific product, as the legislations opponents would have you believe, it is simply a way to lessen the overall economic burden of the cost of health care.

If, however, the opponents win and it is ruled that congress does not have the authority to mandate the purchase of health care, many will be able to make the argument that those who chose to be "active" and purchase health insurance should be allowed access to whatever health care they need, as their insurance will cover the associated costs. Those choosing to remain inactive, however, should only have the right to that health care that they can pay for up front. To give someone without insurance the same access to care without regards to cost as those with insurance would essentially be to place a "tax" on those who do choose to carry insurance, as they are effectively being forced to pay for care for others who made the conscious decision not to pay for their own care. Given that the SCOTUS would have just ruled that such a "tax" or economic mandate was unconstitutional, it would have no choice but to force health care providers to deny to care to anyone who could not pay for it.

Think that sounds far fetched? Lets go back to fire insurance for a minute. That is exactly how fire insurance used to work. If you did not have a fire mark to prove that you have paid for fire insurance, fire companies, paid for by the insurance, simply let your house burn down. Then came municipal taxes which paid for municipal fire services, and the time of letting houses burn to the ground for lack of fire insurance were over.

Or were they. In a disturbing look at what things may be to come in the health care industry, citizens in Obion County Tenn. decided that it was not fair for them to be mandated to pay taxes for fire service since you only ever needed it if your house was on fire. People wanted the right to be "inactive" as health care opponents call it. So what happened?

When the Cranick family did not pay a small $75 fee for fire protection, remaining "inactive" instead, the called 9-1-1 like everyone else does. Instead of responding, the firefighters simply told the Cranicks they were not on the list of those who have paid, and hung up.

If the "Obamacare" opponents have it their way there will be no health insurance mandate. Many among their supporters will think it is a huge victory. I wonder what they will think when they show up at the ER having a heart attack and instead of receiving treatment they receive an audit to make sure they can pay, and a death sentence if they cant.

Posted by: johnqpublic1 | October 18, 2010 10:14 PM | Report abuse

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