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Will healthcare reform survive the courts?

By MICHAEL KIRKLAND   |   Jan. 30, 2011 at 3:30 AM   |   Comments

WASHINGTON, Jan. 30 (UPI) -- The repeal of healthcare reform by the U.S. House earlier this month may have been a feckless exercise of political theater but there is no playacting when it comes to the legal challenges now elbowing their way through the U.S. courts.

The U.S. Senate is extremely unlikely to follow the House's lead, and President Obama has vowed to veto the repeal if it does. But the legal challenges to the Patient Protection and Affordable Care Act by 28 states and others inevitably are headed to a U.S. Supreme Court dominated by a 5-4 conservative majority expected to be at least philosophically sympathetic.

And a key decision by a conservative federal judge in Florida may be imminent, possibly even coming this week.

U.S. District Judge Roger Vinson in Pensacola heard summary judgment arguments in December.

The case under Vinson, initiated by Florida, has swollen to 26 states from the original 19 challenging the law, particularly the provision requiring nearly everyone to have some kind of medical insurance. Vinson is famous for asking whether the federal government can "mandate everybody has to buy a certain amount of broccoli?"

Vinson, a Reagan appointee to the federal bench in 1983, trimmed the original broad challenge to a more manageable package. He allowed the states to challenge whether the law's mandate forcing nearly all Americans to buy health insurance is supported by Congress's constitutional authority to regulate interstate commerce and make laws that are "necessary and proper" to enforce its powers.

Vinson also said the states could challenge the law's expansion of Medicaid, and whether it violates state sovereignty.

The Medicaid challenge points specifically to the Ninth Amendment to the U.S. Constitution -- "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" -- and the 10th Amendment -- "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

No matter how the judge rules, it will not be the end of the legal dispute. Whoever loses would likely appeal. But as the trier of fact, Vinson's ruling would carry great weight with the federal appeals court in Atlanta and in the U.S. Supreme Court.

A conservative women's group posted the states in the Florida suit at healthcarelawsuits.org: Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Nebraska, Nevada, Pennsylvania, South Carolina, North Dakota, South Dakota, Texas, Utah and Washington, joined Jan. 19 by Iowa, Ohio, Kansas, Maine, Wisconsin and Wyoming.

Oklahoma became the latest state to challenge, filing its own suit in Muskogee against the federal law because it violates a new part of the state Constitution approved by voters in November. The amendment says Oklahomans cannot be forced to buy health insurance.

Virginia, of course, also is going its own way with the challenge filed by the state's fiery Attorney General Ken Cuccinelli. The state won at the trial level last December when a federal judge declared the provision requiring an individual to buy insurance unconstitutional.

Cuccinelli also argues that the federal act conflicts with the Virginia Health Care Freedom Act, which the state passed anticipating the passage of the U.S. law.

But that Virginia ruling came after a federal judge in Michigan, in a case brought by the conservative Christian-oriented Thomas More Law Center, declared the individual mandate constitutional under the congressional power to regulate interstate commerce.

The ruling was reported in the Liberaland blog.

"The decision whether to purchase insurance or to attempt to pay for healthcare out of pocket, is plainly economic," U.S. District Judge George Steeh, a 1997 Clinton appointee, wrote in a 20-page opinion in Detroit. "These decisions, viewed in the aggregate, have clear and direct impacts on healthcare providers, taxpayers and the insured population who ultimately pay for the care provided to those who go without insurance."

The states challenging federal healthcare reform are governed by Republicans, of course, but nine Democratic state officials filed a friend-of-the-court brief in the More center challenge appeal urging that Steeh's ruling be upheld.

The 27-page brief was filed with the 6th U.S. Circuit Court of Appeals in Cincinnati by the attorneys general of California, Connecticut, Delaware, Hawaii, Iowa, Maryland, Oregon, New York and Vermont, Legal Newsline reported. The officials contend without the reform law, healthcare costs for their states would "rise dramatically" in the next 10 years.

Legal Newsline points out while the Democratic attorney general joined in the brief supporting the law, Iowa Gov. Terry Branstad supports the Florida lawsuit challenging healthcare reform -- putting Iowa in the position of both supporting and opposing the president's Patient Protection and Affordable Care Act.

The main challenges to the act are accompanied across the country by a number of separate challenges filed by private individuals or organizations, like minnows following behind sharks. The odds are good that all or most of the challenges will be consolidated either at the appellate level -- the U.S. Court of Appeals for the D.C. Circuit is a good candidate -- or at the U.S. Supreme Court.

Regardless of the stops along the way, participants in the suit say they're going to take the case all the way to the Supreme Court.

One huge ugly fly in all this legal ointment -- the main provisions of healthcare reform don't go into effect until 2014. Before you can challenge a law or a government action or sue your neighbor over the leavings of his dog, the courts generally like you to show you've actually been injured.

Not sometime in the future. Now.

In a case unrelated to the others, a private individual and organization filed suit in California raising two questions: whether the law's requirement that everyone have health insurance by 2014 could be challenged now and whether that provision was beyond the commerce power of Congress.

A U.S. judge in San Diego dismissed the challenge, saying neither an employer nor an individual could as yet show an injury caused by the law -- a necessary element to challenge it. A former California state legislator and limited-government advocate, Steve Baldwin, and the Pacific Legal Institute asked a federal appeals court to reverse the judge, and at the same time asked the Supreme Court to rule without waiting for the appeals court decision.

In the only action taken by the U.S. Supreme Court so far in the healthcare dispute, the justices rejected that petition last November.

© 2011 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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