By Jane Perkins, National Health Law Project
This past Monday, Florida district judge Roger Vinson
issued his decision in one of the most closely watched cases challenging the
constitutionality of the Affordable Care Act (ACA). At least 24 such cases have been filed in federal district
courts around the country. The
Florida case is different from all others because of the large number of
plaintiffs–which include elected officials from 26 states (Judge Vinson allowed
six newly elected officials into the case in January). The decision has four major elements:
1. Judge Vinson holds the individual responsibility
requirement (to have minimum insurance coverage) unconstitutional because the
Commerce power does not allow Congress to regulate economic “non-activity” –
i.e, the choice not to buy health insurance. He says the requirement could result in the government
requiring us to buy broccoli. This
ruling (including the broccoli reference) was not surprising based on his
earlier statements and questioning throughout the case. This decision matches the Virginia case
involving Judge Henry Hudson, but stands in contrast to two other Federal Court
decisions (now on appeal to the 4th and 6th circuit courts of appeal).
2. By contrast, Judge Vinson rejected the state
officials’ arguments that the ACA’s Medicaid expansion was unconstitutional
because the states were being coerced to participate. This was excellent news and was somewhat foreshadowed by
some of the Judge’s statements in the past months.
3. Judge Vinson decided, in contrast to even the prior
Virginia decision and reasonable expectations, that the individual mandate
could not be separated from the rest of the ACA, legally speaking the provision
was not severable and, because that part was unconstitutional, the entire ACA
was void.
4. Judge Vinson only declared the provision was
unconstitutional. He denied a
request to enjoin further ACA implementation. He indicated that he was opting not to rule for the
injunction because his declaration that the ACA is unconstitutional should be
sufficient to bar any Federal official from implementing the law.
The most surprising aspect of the decision concerns the
ruling on severability. The
individual responsibility requirement is not in effect and it won’t be until
2014. Moreover, the Judge’s order
is not a model of clarity, and it is not certain whether the declaratory relief
is actually intended to stop all federal implementation efforts. To avoid the risk of being seen as
noncompliant with a judicial order, the Federal government may well seek to
stay this aspect of the decision.
Pursuant to Federal rules of procedure, the ordinary course is for the
request to be made first to the district court (before asking the court of appeals). While it may seem counterintuitive,
district courts will sometimes stay their own rulings where, as here, complex
or sensitive matters are being raised. At any rate, the hope is that, if requested, a stay
would issue promptly, thus clarifying that implementation can continue while
the case is appealed. Barring a
request for expedited review being made to and granted by the Supreme Court,
the case would be heard by the Eleventh Circuit Court of Appeals and then the
Supreme Court if it has not already accepted one of the other cases already
making their way through the courts of appeal.
Meanwhile, the severability ruling is causing a lot of
confusion. Until the situation is clarified, the following question will be
asked: Should the state continue
implementing health reform in light of the Florida decision. Here are five reasons to say,
“Yes.” (For five more reasons, go
to our website):
1. The decision is being used to stir up confusion. Let’s not add to that confusion by
changing the status quo away from the careful path of review and implementation
that is underway.
2. The judge did not rule against any state. His ruling only applies to the federal
government. States can and should
continue what they are doing: carefully
paving the way for health reform in 2014–activity that is and will be matched
by significant federal matching funds.
3. Judge Vinson is only one judge and this is one
decision. So far, at least six
federal district courts have dismissed cases that sought to have the ACA
declared unconstitutional. Two
courts have found the ACA individual responsibility mandate to be
constitutional, and two have found it unconstitutional.
4. Judge Vinson is at odds with the only other decision
holding the ACA individual responsibility provision to be
unconstitutional. Virginia Federal
District Judge Hudson declared the provision to be unconstitutional but easily
found it to be severable from the remainder of the ACA. As he noted, the provision is not to be
implemented until 2014.
5. Judge Vinson began his own analysis with the following
observation: “Severability is a
doctrine of judicial restraint.”
Opinion at 64. The
remainder of the opinion should be looked at with skepticism because he did not
exercise restraint.