The Virginia Court's Ruling on the Health Reform Law
Immediately after Congress passed the health care reform bill, the Patient Protection and Affordable Care Act (PPACA), Virginia enacted its own countermeasure, called the Virginia Health Care Freedom Act; and its Republican Attorney General then brought suit to enjoin the Federal government's performance of section 1501 of the PPACA, which requires individuals to pay a "penalty" along with their taxes if they do not purchase health insurance. Virginia claims that this provision is beyond the power of the Federal government to enforce and also contradicts Virginia's own newly enacted law.
The Secretary of Health and Human Services moved to dismiss this complaint for a variety of reasons, many extremely technical and not notable from the general health reform perspective. What is important here is that Congress based its law on extensive findings concerning the effect on interstate commerce of the manner in which individuals obtain health care. The Commerce Clause of the Federal Constitution has served, certainly since the New Deal, as the linchpin for economic regulation and control over much of the country's overall activities. Probably best known of the many cases which have upheld expansive Federal legislation under the Commerce Clause are the cases Wickard v. Filburn (1942), which upheld a fine on a farmer who raised food to feed his own geese, finding this a violation of market controls during World War II, and Gonzales v. Raich (2005) which upheld a Federal prohibition against the growth of marijuana for the grower's home use despite the express authorization of that conduct by the grower's home state. In the Virginia case, the Federal government argued that everyone must at some point in their life receive health care, and that therefore the regulation of health care economics -- by requiring the purchase of health insurance and assessing a "penalty" on those who fail to do so -- lies well within its powers under the Commerce Clause as interpreted by Wickard, Raich and many other cases.
The court denied the Federal government's motion to dismiss, reasoning that not buying health insurance was (at least arguably) not economic activity, and thus beyond Congressional power to address under the Commerce Clause. Without specifically addressing the argument that every human being requires health care at some point in their lives, it held that "this portion of the complaint advances a plausible claim with an arguable legal basis." The case is thus to go to discovery, summary judgment, or trial. As a recent WSJ Legal Blog post notes, "Virginia’s lawsuit is one of several trying to undo the health-care law. Another large one was filed in a Florida federal court by a handful of state attorneys general."
It is somewhat puzzling what evidence the court expects to see: this is not like the recent Proposition 8 case in San Francisco, where the parties attacking the anti-gay marriage amendment have offered evidence of discrimination against gays under the new regime. Can there be evidence that some persons will never require health care in their lifetime? Or what else is this court asking for? Perhaps it is signaling, despite its description of the claim as only "arguable," that it is prepared to uphold Virginia's objections and declare this key part of PPACA unconstitutional?
As someone who learned (and taught) Constitutional law before the so-called Reagan revolution, I consider this a very far fetched idea. But nowadays, who can tell? Certainly, the Supreme Court, which may have to address this issue if the lower courts continue to reason as this judge seems to have done that not obtaining any form of health care throughout one's life is a realistic option, and further that such abstention will be honored as an opt-out from all daily life in the country (all that seems necessary reasoning to uphold Virginia's argument), has turned so far and so ideologically to the right that one cannot say with any assurance that this argument -- silly as it sounds to this writer from the perspective of daily life and national economics -- cannot succeed. Will it all depend on the fifth vote out of nine Supreme Court justices?
But the country which such a decision would depict bears little resemblance to the nation we know -- one nation, one set of commerce, health care without boundaries which thrives on national and even international exchange of medical knowledge, information and services.
We will just have to wait and see.
