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Florida judge weighs health-care challenge by states

By N.C. Aizenman
Washington Post Staff Writer
Friday, December 17, 2010; 12:25 AM

PENSACOLA, FLA. - Three days after a federal judge granted Virginia's request to void a key provision of the U.S. health-care overhaul law, a federal judge in this coastal city signaled that he is likely to follow suit in a case brought by Florida and 19 other states.

Judge Roger Vinson of the U.S. District Court for the Northern District of Florida never explicitly stated how - or even when - he will rule, other than to say that it will be "as quickly as possible." But his questioning Thursday gave further ammunition to political opponents of the law and foreshadowed legal arguments likely to embroil courts across the country.

During a nearly three-hour hearing on the merits of the case, Vinson frequently appeared to side with the states on the same question at the heart of the Virginia suit: Whether the law's requirement that virtually all Americans obtain health insurance or pay a fine exceeds Congress's constitutional authority.

By contrast, Vinson expressed skepticism over a second part of the law challenged in the multistate suit - that the statute violates state sovereignty by substantially expanding Medicaid, the health insurance program for the poor that is jointly paid for by the federal government and states.

The case, originally filed by Florida Attorney General Bill McCollum and many of the other states minutes after President Obama signed the controversial law in March, is one of two dozen constitutional challenges moving through federal courts. Most experts think that the law's fate will ultimately be decided by the Supreme Court.

Still, if Vinson rules in the states' favor, it would even the scorecard thus far: Two federal district court judges have upheld the law, and the judge in Virginia was the first to invalidate part of it.

Vinson, a Republican appointee, rejected all but one of the Obama administration's constitutional justifications for the insurance requirement in an October ruling. Thursday's hearing was limited to the remaining question of whether Congress's constitutional authority to regulate activities affecting interstate commerce and enact laws "necessary and proper" for carrying out that power applies.

The states - joined in the suit by two individuals and the National Federation of Independent Business, which represents small companies - claimed that a refusal to buy health insurance is not an economic activity, and thus lies outside the Constitution's commerce clause.

The administration countered that this claim of inactivity is an illusion. Because virtually everyone will need health care at some point, deciding whether to obtain insurance amounts to making an economic decision about how to pay for care and has a substantial aggregate effect on the health insurance market that Congress has the constitutional power to regulate.

During Thursday's hearing, Vinson repeatedly pushed back on this point.

"In the broadest sense every decision we make is economic. The decision to marry. The decision to keep a job or not has an economic effect," he said. "If [the federal government] decided everybody needs to eat broccoli because broccoli makes us healthy, they could mandate that everybody has to eat broccoli each week?"

Vinson also questioned the notion that a person who chooses not to buy insurance will necessarily be unable to pay for his or her health care. He himself was uninsured, Vinson said, when one of his children was born, and he paid the entire bill.

"I think it worked out to be $100 a pound," he said.

"Not everyone who is uninsured fails to pay," conceded Deputy Assistant Attorney General Ian Heath Gershengorn, representing the administration. "But what Congress found is that, as a class, the uninsured consume care they cannot meet the costs for, and they impose those costs on the rest of us."

Vinson appeared unconvinced, remarking soon after that, "it would be a great leap for the Supreme Court to say that a decision to buy or not to buy is an activity. That would be a giant expansion of the commerce clause."

On the case's second issue, the constitutionality of expanding Medicaid, the judge sounded less sympathetic to the plaintiffs. The law says that, starting in 2014, Americans with incomes up to 133 percent of the poverty level will qualify for the program, a higher eligibility level than most states use now. For the first few years, federal money will cover all of that expansion, but eventually states will have to pay 10 percent of the cost.

Lawyers for the states and the administration sparred over whether this would impose a crushing burden on state budgets. But as a legal matter, Vinson primarily focused on the states' argument that though Medicaid is a voluntary program the downside of pulling out is so large that the states can't afford to do so. Therefore expanding the program's costs to them amounts to a violation of state sovereignty.

Noting that officials in Texas have considered pulling out of Medicaid, Vinson pressed Blaine H. Winship, an assistant Florida attorney general representing the states on whether they really are bound to participate.

"Isn't it still voluntary?" the judge asked several times.

In addition to Florida, the states party to the suit are South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho, South Dakota, Indiana, North Dakota, Mississippi, Arizona, Nevada, Georgia and Alaska.

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