Virginia health reform ruling bolsters case made by Suthers

Virginia health reform ruling bolsters case made by Suthers

Colorado Attorney General John Suthers took a lot of heat when he joined with nearly 20 Republican attorneys general to file a lawsuit against the national health care reform legislation just days after it passed. Detractors saw the suit as a bitter move less about law than about political spectacle. Defenders of Suthers told the Colorado Independent that Suthers was vindicated on Monday when a federal judge in Virginia declared a key provision of the health care law unconstitutional.

“The ruling underlines what Attorney General Suthers has been saying from the start, specifically that there are serious Constitutional issues with the individual mandate included in the health care reform law,” said Attorney General Communications Director Mike Saccone. “We didn’t get into the suit based on polls or politics.”

U.S. District Judge Henry Hudson agreed with Virginia Republican Attorney General Kenneth Cuccinelli in ruling that the Minimum Essential Coverage provision of the law “is neither within the letter nor the spirit of the Constitution.” The provision would take effect in 2014 and would require all Americans to buy health insurance. The provision is the lynch pin in the effort to lower spiraling health care costs and dramatically expand coverage.

The important thing to take away from Judge Hudson’s ruling, said Saccone, is that the questions he ruled on Monday are nearly the exact questions being considered in the lawsuit joined by Suthers.

Hudson is the first federal judge to rule against the controversial but increasingly popular law. So far health reform has been held up by two other Federal judges, one in Virginia and one in Michigan. Several other related lawsuits have been dismissed and others are pending. Oral arguments in Florida begin Thursday in the multi-state suit Suthers joined.

Boulder District Attorney Stan Garnett, who ran against Suthers this year for attorney general, said at the time that he was disgusted Suthers would waste strained state resources on national politics gamesmanship. Garnett dismissed the lawsuit as unlikely to prevail and said it was less about law than spectacle.

Prodded by the Garnett candidacy, Suthers defended his decision to join the suit on the campaign trail this past summer. He said the federal government has long regulated economic activity but that never before in history has the federal government attempted to regulate economic inactivity.

“If this legislation is allowed to stand,” he said, “and the federal government can force you to buy any product or service it feels is good for you, then there is no limit to the federal government control over your individual economic decision-making. They can make make you buy the car they want and make you eat the food they want.”

Jon Caldara, president of the conservative Independence Institute, landed an “anti-Obamacare” initiative on the ballot in November, the so-called Health Care Choice Amendment 63, which aimed largely at guarding Coloradans against the individual insurance mandate. Voters rejected the proposal but David Kopel, research director at the Independence Institute and a constitutional law professor at the University of Denver, told the Colorado Independent that Judge Hudson’s ruling underlines the legitimacy of the Suthers lawsuit as well as the Caldara initiative.

“When Suthers joined the suit, there were a lot of commenters saying it was silly and politically motivated The Virginia ruling shows there was nothing frivolous about the suits. On the contrary, it shows that the arguments were plausible. There are people who owe John Suthers an apology. It’s one thing to disagree with the reasoning behind a suit. It’s another to call it frivolous when it’s not frivolous.”

Monday’s ruling is a “huge deal,” he said, especially in light of recent losses for the opponents of the law.

“You can think of it like the regular season in sports. Those games decide who’s going to make the playoffs. If the Obama administration had won all these cases, the Supreme Court would be less likely to take up the issue.”

As he also pointed out in a post at the Volokh Conspiracy blog, Kopel said it’s significant that Judge Hudson restricted his ruling to the individual insurance mandate.

“There are clearly things in the bill that are constitutional. Congress can tax tanning parlors and it can require restaurants in certain cases to provide calorie counts for the items on their menus, but the individual mandate is different.”

The ruling demonstrates the courts will not hesitate to “sever” the bill and rule on discreet provisions instead of feeling bound to consider the enormous legislation as a whole.

The Obama administration argued that the provisions of the bill knitted together into a single fabric and so taking out a single provision would unravel the legislation thinning its power to address the problems long plaguing the health care system.

Kopel said the Supreme Court will likely take up the case in one of next two sessions, by 2013 at least. Although that may seem a long way off as the law begins to take effect around the nation, it’s still a year before the individual health insurance mandate requirement is scheduled to kick in.

Even if the Supreme Court rules against the individual mandate, the battle over government-run health care may certainly continue. Indeed, new initiatives modeled after Caldara’s may still be relevant.

Kopel said the future of the discussion is still a matter of state’s rights versus federal rights.

The national government is granted limited enumerated powers. So the question is Can the national government force us to buy insurance? he said. In contrast, state governments generally have power over everything.

“Colorado could pass a law this session demanding that every Friday is casual Friday, that no one can wear suits on Fridays in Colorado. We might well fight such a bill but Colorado’s right to pass a mandatory casual Friday law would not be questioned.”

So, he said, the point of the Caldara Amendment remains relevant in that, whatever happens with “Obamacare” many Americans will want to be guarded against future laws aimed at forcing individuals to buy health insurance– or to stop being “economically inactive” in any other way they feel like being so.

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About the Author

John Tomasic

Writer, editor, web wrangler. He has worked for art, business, culture, politics publications and for a UN war crimes commission. @johntomasic
jtomasic@coloradoindependent.com | 720-432-2128 |

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