Posts Tagged ‘Florida’

A Closer Look at the Florida Ruling

Wednesday, February 2nd, 2011

Vinson toasts anti-ACA supporters with tea
Alas, the Judge Roger Vinson (Florida v. HHS) ruling is here. The Florida-led case remains the media darling of the handful of cases challenging health reform that are rolling through the Federal courts in various circuits across the country. The Florida-led plaintiff list (those opposing the law) brags of 26 states; this case represents a larger Republican strategy to challenge the almost year old health reform law. The plaintiffs argue that the individual mandate (or the provision that all individuals hold health insurance by 2014 and also termed the minimum coverage provision) infringes upon individual liberty. No one should make you buy health insurance – alternatively, the Department of Justice (DOJ) argues that no one should make you pay for those who decide not to buy health insurance. Confused? We are just getting started.

Sit back and let your tea brew…
Many have waited anxiously for this moment even though there was little doubt regarding the outcome. Judge Vinson did, however, jolt the media with his far right leaning, tea bag dipping, and Constitution defending language: “it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.”

Vinson’s stance is most striking because of his position on what is termed ‘severability’; in other words, can the ACA stand without the individual mandate? Vinson maintains that while he did not read the entire Affordable Care Act (ACA) (no fair, we did), that it is clear to him that the individual mandate is inextricably linked to the provisions of the ACA and was the intent of Congress. Therefore, the entire law must be declared unconstitutional because it cannot exist without the individual mandate (and the individual mandate is unconstitutional).

Good news?
On that front, there remain questions about implementation and the responsibilities of states. Did the Judge grant an injunction? (No.) Do states need to implement the law? (Yes.) Will DOJ appeal to the 11th circuit? (Yes.) Various legal minds are trying to sort through these questions – however, the current analyses suggest that because Vinson issued a declaratory judgment, there is no need for a ‘stay’ – or a requirement that until the appeals process is complete, the law stays put on the books. That is not to say that states won’t think this their ‘out’ – advocates must continue to educate the public about the benefits of the law and move forward with implementation. Jonathan Cohn does his best to summarize this confusing outcome here.

In short, states are not off the hook. The ACA is still the law of the land and unless SCOTUS rules otherwise, our work continues. It is important to remember that as the public reaps the benefits of the law, they will embrace it. This will give SCOTUS pause; overturning ACA will be damaging to all Americans. It is our job to remind the public of a state’s need to continue to work to insure millions of Americans, giving them greater access to health care and better health.

Few commentators are touting the win for Medicaid as a result of this ruling. Judge Vinson did tell the right wing to back off of Medicaid – he maintains that there is no legal foundation to their argument that states are being coerced into the program. This is encouraging news for advocates who are working tirelessly to protect a vital program for vulnerable populations.

Keep the context.
The ruling differs from that of Judge Henry Hudson (Virginia v. Sebelius) issued this past December.  Hudson did not go as far as Vinson in his ruling – although Hudson claims that the individual mandate is unconstitutional, he does not maintain that the entire law is null and void. It is important to put all of this into context. These are two rulings of four – the two opposed to the ACA are both from Republican appointed judges in more right leaning circuits (yes, this is part of a Republican strategy as to where they filed cases) while the two rulings in support of the ACA come from Democratic appointed judges – and judges have thrown out 12 cases due to a lack of merit. So, the rulings scoreboard reads 2-2 and we are not even to the seventh inning stretch.

Therefore, the most important ‘take away’ from Vinson is that this is one piece of a larger judicial process – more rulings will be unveiled before the Supreme Court makes its determination regarding the constitutionality of the ACA. However, as pointed out by our own Michael Miller, the ruling is fodder for Republicans to feed their far right base and motivate newly reddened states to hold defiant in their progress toward ACA implementation.

Just roll with it.
What’s next? The 4th circuit. The two Virginia cases will be heard by the same appeals panel (three judges selected at random). While DOJ will appeal in the 11th circuit, the 4th circuit will most probably have the privilege of issuing the first appeals ruling regarding the individual mandate.

– Eva Marie Stahl, Policy Analyst

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The Insider: ACA Implementation: Partly sunny with a (Supreme) chance of rain

Thursday, October 21st, 2010

This week brought some important developments in ACA implementation. First and foremost is the major win by consumer advocates in the prolonged and multi-pronged struggle to shape NAIC recommendations on Medical Loss Ratios. At the NAIC meeting in Orlando today, consumer advocates beat back attempts by brokers to exclude commissions from the definition of medical expenses, blocked insurers from using high-loss ratios in one state to paper over a failure to meet standards in another, and created a reasonable standard of certainty to establish whether an insurer’s failure to meet the loss ratio was due to under-spending on medical care or unforeseeable random events.

These decisive wins are a case example of the one-two punch that advocates will need in order to influence the numerous federal and state decisions ahead. The consumer victory resulted from the combination of persistent policy advocacy, especially by the NAIC consumer representatives, coupled with a national effort by consumers to reach out to their insurance commissioners and let them know that people were watching (illustrating one of the important axioms of grassroots advocacy: decision makers make different — and better — decisions when they are being watched).

The second key development, while less positive, also contains within it an important strategic dimension. Last week, the Florida District Court issued a decision allowing the case against the individual responsibility clause of the ACA to go forward. Specifically, the Florida court will hear arguments about whether the individual responsibility requirement is legal under the Commerce Clause. The court also will hear arguments about whether the Medicaid expansion under the ACA exceeds Congress’ authority, although Judge Vinson’s decision makes it clear that he considers this argument to be much weaker than the individual responsibility claim. Because Judge Vinson rejected the federal government’s argument that the penalty for not having health insurance constitutes a tax, the focus of the Florida case is squarely on the Commerce Clause argument. Just a week earlier, a District Court in Michigan ruled that the individual responsibility requirement was Constitutional. Whether Florida (and Virginia) ultimately agree with the Michigan ruling, the issue is likely heading for the Supreme Court, which should be enough to give anyone concerned about the sustainability of the ACA a few sleepless nights (especially since the wife of one Justice is actively campaigning for repeal).

But while legal scholars slug it out and try to second guess the next round of rulings, it is important for advocates not to lose sight of the intertwining of the political and legal issues since most advocates will not be able to intervene directly in the legal proceeding.

First, the court cases keep public attention focused on the individual responsibility requirement, which is one of the least popular provisions of the law. The lawsuits also encourage doubt over whether the law will actually be implemented in its current form and potentially give cover for foot-dragging by state administrations inclined to oppose implementation.

The court actions not only affect the political debate, they are also affected by it. The political backdrop against which the Supreme Court makes its final decision is extremely important. To the extent that the law is considered unpopular and there is an active movement for roll back, it will create a context in which a negative legal outcome is considered more palatable.

The key takeaway for supporters of reform is that whether we are looking at how the court cases affect the political debate or how the political debate affects the courts, the response of advocates must be to keep working to create a context of support for the law and expectation that it should and will move forward.

Overall, the events of the past week underscore both the need for and the potential of sustained consumer engagement.

— Michael Miller, Policy Director

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Florida ruling swings pendulum toward Supreme Court

Friday, October 15th, 2010

Yesterday, the federal judge in Florida, Roger Vinson, allowed the lawsuit against the new health law to go forward. In his ruling, the Judge maintained that there were constitutional issues in play and formal hearings would begin mid-December. Specifically, the Judge discounted the Justice Department’s claim that 1) the individual mandate was a natural extension of the commerce clause – or the federal government’s ability to regulate interstate commerce; and 2) the penalty imposed by the individual mandate was equivalent to a tax.

However, Judge Vinson dismissed several claims made by the plaintiffs – 20 attorneys general, led by the Florida AG, Bill McCollum – including arguments related to state sovereignty. Nevertheless, he sided with the AGs that the use of the commerce clause was unprecedented and deserved a weighing of whether or not that exercise in federal power is constitutional. Vinson also went to great pains to dismiss the Justice Department’s argument that the penalty associated with the individual mandate was simply a tax. Interestingly, he honed in on the political discussions that occurred during the passage of the legislation when many promoting reform argued that the penalty was not a tax. Shouldn’t the semantics of taxation during political theater be irrelevant in the courtroom? I guess not.

As reported by the Volkh Conspiracy here, there is little discussion by Vinson regarding the Necessary and Proper clause – which is the strongest argument for the new health law. Millions of uninsured doesn’t translate into “necessary?” In U.S. District Court in Michigan, however, Judge Steeh maintained that the insurance mandate is constitutional and the overwhelming national crisis supersedes the concerns expressed by health reform foes: “The costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers… These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers and the insured population who ultimately pay for the care provided to those who go without insurance.”

The Florida ruling is important because, alongside the Virginia ruling expected on Monday, it narrows the path for defendants and plaintiffs alike in how they argue the case. Clearly, the commerce clause will be the central constitutional question going forward. Should not purchasing health insurance be viewed as an active choice that may be regulated? We will hear many competing theories in the coming months – which theoretical frame will the Supreme Court choose? How will the pendulum swing? Stay tuned.

– Eva Marie Stahl, Policy Consultant

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