Tuesday, October 19, 2010
Judge weighs health care law
Lawyers argued over the constitutionality of the federal mandate to buy health insurance.
New healthcare blog
RICHMOND -- A U.S. District Court judge will decide by the end of the year whether Virginia has successfully argued that the federal health care reform act is unconstitutional, an important milestone in what figures to be a long and closely watched legal battle over the sweeping legislation.
In a packed courtroom, Judge Henry Hudson heard nearly two and a half hours of arguments Monday in Virginia's lawsuit challenging a key provision of the Patient Protection and Affordable Care Act. The state maintains that Congress exceeded its authority and misapplied its taxing power by including a provision that requires individuals to purchase health insurance by 2014 or pay a penalty to the government.
"If Virginia loses this fight, then the federal government is allowed to cross this line, Congress will be granted virtually an unlimited power to order you to buy anything," state Attorney General Ken Cuccinelli said after Monday's hearing.
In anticipation of such a requirement, the Virginia General Assembly this year passed legislation that protects state residents from being forced to buy insurance. Cuccinelli, a Republican, filed a lawsuit challenging the federal health care law on the same day that President Obama signed the measure into law. Gov. Bob McDonnell has been a strong supporter of the lawsuit.
Hudson said the argument over the individual mandate boils down to a question of whether a refusal to buy health insurance represents activity that can be regulated under the Constitution's commerce clause. He acknowledged that his word will not be the last one in this high-stakes case -- and at one point said the federal law "has more moving parts than a Swiss watch."
"As you well know, this is only one brief stop on the way to the United States Supreme Court," Hudson said.
Virginia's lawsuit could be the first state challenge to the federal health care law decided by a lower court. Florida is leading a separate challenge by 20 other states. Cuccinelli has asked Hudson to issue an injunction that would keep the federal government from implementing the law if the judge finds it unconstitutional.
In Monday's hearing, state Solicitor General Duncan Getchell argued that the commerce clause does not allow Congress to regulate "inactivity" by forcing individuals to buy a product.
Attorneys for the Obama administration contend the law's "minimum coverage provision" is a legitimate tool to help control health care costs and compel individuals to pay for medical services they inevitably will receive. The administration argues uninsured patients account for $43 billion in annual costs that are shifted to the insured population, to governments and to taxpayers.
"The decision to get or not get insurance and essentially gamble that other people will pay for you when you get sick is not inactivity," said U.S. Deputy Assistant Attorney General Ian Gershengorn, who argued the federal government's case Monday.
"No one can tell whether they're the one who's going to get hit by the bus; whether they're the one who's going to get cancer," Gershengorn said.
Hudson, an appointee of former President George W. Bush, wondered how far the government could reach if it could compel people to buy insurance as a means of regulating the health care market. He questioned whether the government could then require people "to buy a car, to join a gym, to eat asparagus."
"It's boundless under your theory," Hudson told Gershengorn.
The two sides also sparred over whether Congress properly applied its taxing power by imposing a penalty for those who fail to purchase insurance. Both Getchell and Hudson noted that Obama and top congressional Democrats had insisted that the penalty was not a tax as they tried to assemble political support for the legislation.
"The two political branches of government argued strenuously that it was not a tax," said Getchell, who argued that the penalty is a punitive measure not designed solely to generate revenue.
Hudson twice mentioned Obama's denial and asked Gershengorn, "Was he trying to deceive the people?"
Gershengorn said the penalty functions like a tax because the revenue goes into the general treasury and is reported on a taxpayer's annual return.
With two weeks to go before the midterm elections and with the health care law a major issue in many congressional races, the Justice Department's argument could make some Democratic legislators uneasy, Cuccinelli said in a news conference.
"I can't imagine that those congressional representatives who went to their town hall meetings last summer and last fall and told their constituents, 'No, no, this isn't a tax; this isn't a tax,' -- to have the lawyers for the federal position essentially yank that rug out from under them while they're up on the ballot in two weeks can't be terribly comfortable either," Cuccinelli said.
Gershengorn also disputed the state's argument that the entire health care law should be voided if the minimum coverage provision is declared unconstitutional. Getchell said the measure never would have passed Congress without the mandate.
Gershengorn said many provisions of the law, such as expanded Medicaid eligibility, are not affected by the individual mandate.
Outside the courthouse Monday morning, a health care consumer group that supports the federal law claimed Cuccinelli's lawsuit would jeopardize a wide range of needed reforms, including provisions to help seniors and allow young adults to remain on their parents' insurance policies until the age of 26. Ron Pollock, the executive director of Families USA, accused Cuccinelli of waging a "politically motivated attack."
Cuccinelli said he is doing the job he was elected to do.