That Other Individual Mandate Lawsuit

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In Pensacola, Fla. today, federal Judge Roger Vinson indicated he sympathizes with those who say the Affordable Care Act’s individual mandate violates the Constitution. If Vinson ultimately rules that the requirement that all Americans maintain health insurance coverage is unconstitutional, it would be a second brutal court blow to the Obama Administration.

Earlier this week, a federal judge in Virginia ruled the federal government does not have the power to impose the individual mandate. Two other federal judges have ruled the mandate is constitutional.

The Virginia ruling disappointed health reform advocates, but it was not a surprise. The judge overseeing that case, Henry Hudson, had earlier indicated he largely agreed with the Commonwealth of Virginia, which filed the suit. The Florida case, in which 20 states are suing the federal government, seems to be proceeding similarly.

According to Politico:

…Judge Roger Vinson questioned how far Congress’s authority would go if it can legally require nearly all Americans to purchase health insurance.

Could they “mandate everybody has to buy a certain amount of broccoli?” Vinson questioned, comparing the positive impact both could have on health.

This kind of questioning does not bode well for the Administration, which argues the Commerce Clause gives the feds power to require everyone have insurance, saying it’s a means of regulating commerce. Those suing to overturn the individual mandate say the penalty for not having coverage amounts to punishing Americans for not purchasing something, which could set a dangerous precedent. Attorney David Rivkin, representing the suing states, told me today that “the judge was extremely appreciative of the key Constitutional arguments we were making.”

Also according to Politico, Vinson said:

“It would be a giant leap for the Supreme Court to say a decision to buy or not to buy is tantamount to activity,” he said.

Ouch. Rivkin, however, sounded less confident the state would prevail on another of their arguments – that the Medicaid expansion called for in the ACA amounts to illegal “coercion.” “We still feel the body of law is in our favor, but the case law is far sparser,” Rivkin said.

Vinson said he will rule as soon as possible; Rivkin said he expects a decision in January.

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