washingtonpost.com
Virginia health-care ruling strikes down key provision of Obama's plan

Tim Jost
Law Professor, Washington and Lee University
Monday, December 13, 2010; 3:00 PM

Tim Jost, law professor at William and Lee University School of Law, and Stephen Vladeck, law professor at American University were online Monday, Dec. 13, at 3 p.m. ET to discuss the controversy over whether a key provision of the Obama health-care bill is unconstitutional.

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Tim Jost: tim jost, washington and lee university, I am here to discuss the ruling of Judge Hopkins today on the constitutionality of the health care reform statute.

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Fairfax, Va.: Could this negate the whole health-care bill?

Tim Jost: No. Judge Hudson only held that the minimum coverage requirement was unconstitutional. He specifically did not enjoin the implementation of the legislation. He also held that the provision was independent from the rest of the statute, so only that provision was struck down, and provisions that specifically refer to it, of which they are none. This does not affect the rest of the law.

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Washington, D.C.: How much is politics playing in this?

Tim Jost: Clearly Attorney General Cuccinelli has been playing this for all the political capital that it is worth, but I think the judges who have heard these cases are really trying to figure out the law. Judge Hudson has simply misinterpreted the Commerce Clause.

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Atlanta, Ga.: Is this ruling more significant than the two opposite rulings that have come before it?

Tim Jost: no, all are federal district court opinions and all carry equal weight legally. This case is higher profile because it was brought by a state, but the decision is no more important legally than the other 14 cases that have rejected challenges.

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Hagerstown, Md.: How much of a roadblock will this be and will it reach the Supreme Court?

Tim Jost: It will have no legal effect at this time, since the law would not be implemented until 2014 in any event. It is possible that the case will reach the Supreme Court, but if tall of the courts of appeals decide to uphold the law (or strike it down) it may never get to the Supreme Court.

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Washington, D.C.: How soon before the Supreme Court takes this? Have any circuit courts of appeal ruled yet?

Tim Jost: One court of appeal (the fourth circuit) has upheld an earlier district court decision that rejected a claim on jurisdictional grounds. It will be some time before this reaches the Supreme Court, if it ever does.

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Arlington, Va.: First a comment -- to all those people who say that voting doesn't matter, at either state or federal level -- IT DOES. And while Judge Hudson overturned the individual mandate, what is the status of pre-existing conditions? And how does his decision match up with the other cases around the country?

Tim Jost: This does not legally affect the provisions of the Affordable Care Act outlawing preexisting conditions clauses, because the court held that this provision was "severable." It does affect them practically, because it will be hard for insurers to take people with preexisting conditions if healthy people can choose not to purchase insurance until they get sick and then buy it. This will make insurance much more expensive for responsible people who insure themselves.

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Richmond, Va.: Could this ruling be used by hospitals to say it's unconstitutional to force them to treat people who can't pay? If you can't force people to buy insurance, how can you force people to treat people who can't pay? It's not like medical care is a right.

Thanks for taking our questions.

Tim Jost: There is no constitutional right to medical care, but Americans are ambivalent on whether there is a right to health care or not. Most Americans believe that people should be able to get some care, whether they can afford it or not. We don't want to step over dead bodies in the street. The emergency care requirement is imposed only on hospitals that accept Medicare. it is imposed under the spending clause and is clearly constitutional. Some states also require emergency care, but they have plenary police power.

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Ohio: So, by this Virginia judge's logic, it's also unconstitutional for states to require drivers to purchase auto insurance, since that also "forces consumers into the market."

I'd like to see that lawsuit.

Tim Jost: There actually were a number of lawsuits challenging mandatory liability insurance requirements and they were upheld. But these are state laws and thus do not need to be justified under the federal Constitution. Also, Judge Hudson would say these laws only apply if one engages in the "activity" of driving.

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Pittsburgh, Pa.: If, as you say, "Judge Hudson has simply misinterpreted the Commerce Clause," then can't today's decision be overturned at the Appeals Court level?

Tim Jost: It can be, and in all probability will be. The 4th Circuit will hear both the appeals from Judge Moon's decision upholding the law and Judge Hudson's decision striking it down. We will see which they go with. Of course, there may be more decisions by then.

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Tim Jost: What if there were a cholera epidemic sweeping the US as there is in Haiti. What if the federal government required everyone to be vaccinated for cholera (as it considered doing for various biological warfare agents post 911). This would also require inactive persons to engage in an activity. Would the law be unconstitutional? I would think that given the impact a national epidemic could have on commerce, it would be upheld. Similarly, the decision not to insure has national ramifications, and Congress can regulate it.

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Washington,D.C.: Are the other parties contending the same issue about the bill?

Tim Jost: The challenge to the individual mandate is raised by most of the cases. Lots of other issues are in them as well, many of them based on misunderstandings of the legislation.

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Atlanta, Ga.: You wrote: "This case is higher profile because it was brought by a state, but the decision is no more important legally than the other 14 cases that have rejected challenges."

Pretty much every major online news source, including the Post, has this ruling as their headline. In light of the rulings that have come before it, do you think that is justified?

Tim Jost: Not from the standpoint of legal authority. This one is, of course, very important politically since the plaintiff is a state. The news media are, of course, more interested in politics than in law.

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Pittsburgh, Pa.: If, as you say, more district courts strike down "the constitutionality of the health-care reform statute," will this make it harder for Appeals Courts to overturn them?

Tim Jost: Maybe I misspoke. right now 14 cases have refused to strike the statute down, one (the Virginia case) has held it unconstitutional. A 14 - 1 record can get you a BCS bowl. The Courts of Appeals would probably be more likely to rule one way or the other if the district courts were unanimous, but in fact the courts of appeals review legal questions afresh, and are not likely to rule one way or the other just because the district courts have.

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Laytonsville, Md.: So - we are supposed to buy and accept your terse statement that the judge has "...simply misinterpreted the Commerce Clause." I would imagine I could probably find a number of law professors around the country who: a) aren't on this chat, and b) would disagree with you. Isn't that so?

Just wanted to make sure that readers of this forum understand that you're not the final arbiter here.

Tim Jost: Absolutely. I think the most constitutional law scholars would agree with me, but a number would not. The Supreme Court is the final arbiter. On the other hand, I have been teaching and writing about health law for 30 years and have spent more time with the Affordable Care Act than virtually anyone else in the country, so I was not picked randomly for this task.

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washingtonpost.com: Prof. Stephen Vladeck of American University will now answer questions.

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Wichita, Kan.: Isn't it inaccurate to say that a Federal District Judge can "strike down" part of legislation as being unconstitutional? Can't only the USSC do that? I was given to understand FDJs could only declare relevance of facts to application of law.

Also, the article summarized: "Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market," he wrote. "In doing so, enactment of the {individual mandate] exceeds the Commerce Clause powers vested in Congress under Article I -of the Constitution.]

Wickard V. Filburn, the basis for most Commerce Clause cases, indeed says that.

Stephen Vladeck: It's fairly well-settled that district courts can enjoin state and federal laws on the ground that they're unconstitutional. It's an awesome power for those jurists to exercise, but it's hardly unprecedented. The principal check on that authority is the appeals process, which, as Professor Jost mentioned, is where these cases will go next.

To answer your second question, and to go back to one of Professor Jost's exchanges with a prior commenter, I think Wickard v. Filburn is the key here. The question is whether there's a difference between the government's power to stop an individual from doing something (there, growing wheat) versus to compel an individual to do something...

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Takoma Park, Md.: My Con Law professor will be so disappointed in my memory... But, notwithstanding the decision of any of the lower Federal courts' decisions to hear and rule on these complaints, will the issue be "ripe" per SCOTUS until the effective date of the specific Section in 2014?

Stephen Vladeck: The ripeness issue is a big deal, since the provision that Judge Hudson struck down today isn't even in effect yet. But as your con law professor probably told you (and as I tell my students), courts that want to rule on the merits of a case usually find a way to do so. And unlike other bars to deciding cases, the longer things drag out, the less ripeness is a concern...

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Washington, D.C.: In your view, what limits are there to congressional power under the commerce clause (since my being alive is apparently an event that permits forcing me to purchase insurance, is there anything that I do that doesn't have, on a collective level, a commerce clause implication)?

Stephen Vladeck: This is the key question, methinks, and my own view, for what it's worth, is that the answer is yes. But given the existence of comprehensive nationwide health insurance programs like Medicare and Medicaid, and given that virtually every major health insurance company is a national business, it seems to me that health care is not the tipping point, but rather one of the areas where there's a stronger argument that each person's conduct affects the national market. Yes, it may not seem that way to the individuals on the street, but by that logic, virtually nothing would constitute "interstate" commerce. The real issue is where the line is, and I think the idea (and the nationwide extent) of the "market" is the key...

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Washington, D.C.: Were all 14 of those cases about the individual mandate, specifically? And were all the verdicts on the merits (as opposed to procedural grounds)? You said challenges to the law, which includes many aspects other than the individual mandate, and didn't specify if they were merits decision on the power of Congress under the Commerce Clause.

Stephen Vladeck: Every single lawsuit has been at least in part a challenge to the "individual mandate." Professor Jost has been following the individual cases more closely, but my understanding is that some of the 14 decisions before today have been on the "merits" (i.e., that the bill is constitutional), and some have been on other grounds, including ripeness (mentioned above), and other "procedural" bars to relief. I believe that the Post is keeping a helpful chart...

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Annandale, Va.: This is why we needed the public option.

I worry that none of the provisions of this bill address the underlying problem: the spiraling costs of medical care, not insurance.

Stephen Vladeck: That may well be true. Indeed, that's why a significant number of Democratic members of Congress (and their supporters) thought that the bill didn't actually address the core underlying issues with our current health care system. Whether it is the best policy choice, though, doesn't (or at least shouldn't) factor into whether Congress had the power to enact it. And the same is true in reverse: it's important to separate out political opposition to the bill from the view that it's unconstitutional. We'd all do well to remember that there's a big difference between what Congress can do, and what, in our view, it should do...

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Richmond, Va.: "I think Wickard v. Filburn is the key here."

Why was it necessary to amend the Constitution with the Eighteenth Amendment(Prohibition)if Wickard v Filburn was the correct understanding of the Commerce Clause?

Presumably under the reasoning of Wickard v Filburn the Commerce Clause alone should have sufficed to grant Congress the power to enact the Volstead Act. Why would you need to amend the Constitution to regulate alcohol but not wheat?

Eighteenth Amendment to the United States Constitution (Wikipedia)

Volstead Act (Wikipedia)

Stephen Vladeck: If Wickard v. Filburn were on the books, I doubt the Eighteenth Amendment would have been necessary (although I'm sure those who know the history of that time period better than I could come up with an argument distinguishing wheat from liquor). The reality, though, is that the Supreme Court fundamentally altered its view of the scope of Congress's regulatory powers in the late-1930s, in the process of upholding many of the key programs of the New Deal. Wickard is emblematic of that trend--and the recognition of a reality driven home by the Great Depression, i.e., that local events affected national (and interstate) commerce a lot more than had previously been appreciated.

I take it as a given that many will think that Wickard was wrongly decided--that's certainly a fair position. But so long as it's on the books, I think there isn't a lot of room between its analysis and the analysis of the health care bill...

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Washington, D.C.: Thanks for answering my earlier question. Follow-up: Medicare and Medicaid both have opt-out provisions, so I don't see how that justifies the mandate, under the commerce clause. Can you explain further? I see no reason why Congress couldn't start a USA equivilent to the NHS (and would not need CC power to do it) provided it has an opt-out (like NHS, Medicare, and Medicaid). The individual mandate seems fundamentally different.

Stephen Vladeck: Yes, Medicare and Medicaid both have opt-out provisions, but those provisions aren't the reason why both are constitutional... It may make more sense as a policy matter to do as you suggest, but the issue I was trying to address is why Congress could reasonably conclude that there is such a thing as a national market for health insurance that would justify the individual mandate. This is an area of law where there has been a sustained federal presence for over 45 years, a federal presence that suggests the existence of a national market. If that's true, then the question becomes how Congress is able to regulate a national market without leaving millions of Americans uninsured.... and that's how we ended up here.

In other words, it seems to me that one could oppose the constitutionality of the bill under the Commerce Clause either because (1) there isn't a national market; or (2) Congress can't regulate individual choices even in the context of a national market. (1) seems foreclosed by the facts; (2) seems foreclosed by Wickard and Gonzales v. Raich. The Supreme Court may yet choose to revisit those precedents, but the lower courts are bound to follow those decisions until and unless that happens...

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State of Dyspepsia: Who are the people who want to refuse access to healthcare at any cost, and remain uninsured?

I'm fairly certain all of our commenters who are appalled at the mandate are already insured...

Stephen Vladeck: To be fair, the arguments against the bill aren't frivolous. The reality is that the federal government's power under the Commerce Clause today is quite expansive, and I think it's entirely reasonable to ask where the limits are, given how important a constitutional principle it is that the federal government has limited powers...

I just think that health care isn't the substantive legal field in which to have that fight, given some of the points noted above about the nature of the market, the existence of prior government regulation, and the current precedent.

Perhaps the better question of those who oppose the bill is whether they would also oppose it if it were a state law, rather than a federal one...

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Seattle, Wash.: As a hospital executive, I am able to write volumes about the cost of the uninsured and our general requirement to treat these patients as a condition to our particiation in Medicare. Frankly, no hospital could survive without Medicare, so in effect is a de-facto mandate.

What would prevent the government from connecting the mandate with some other requriements, such as selectice service registration, entitlement to unemployment compensation, or evening a driving license--to make purchase of health insurance impossible to avoid?

Stephen Vladeck: The reality is that there has to be a "reasonable" relationship between what Congress is doing and why it's doing it. I suspect that courts would be more skeptical of tying non-health insurance related mandates to this kind of regulation, and so that would be the real check...

But the larger point about Medicare being a de facto mandate drives home something I said earlier--it's hard to un-ring the bell when it comes to federal intervention in health care, and that may have a lot to do with how these lawsuits ultimately end up...

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Stephen Vladeck: I'm signing off now, but thanks to all for your thoughtful questions and comments. I'd be happy to continue the conversation offline; feel free to e-mail me at svladeck@wcl.american.edu.

Thanks also to the Washington Post for having me! Have a great week, everybody...

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