August 2, 2010

In a somewhat predictable but still annoying move, U.S. District Judge Henry Hudson refused to dismiss Attorney General Ken Cucinelli's lawsuit seeking to challenge the constitutional grounds for the Affordable Care Act. The key language in the 32-page ruling (PDF) is this:

While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate -- and tax -- a citizen's decision not to participate in interstate commerce. Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addresses this issue. No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce. Given the presence of some authority arguably supporting the theory underlying each side's position, this Court cannot conclude at this stage that the complaint fails to state a cause of action."

Or, stated more simply, the judge has decided to allow Virginia to challenge the Affordable Care Act in its entirety based on a challenge to the individual mandate. The court (and Ken Cucinelli) should be careful what they wish for. If the court's logic is deemed sound and this case were to be challenged all the way to the Supreme Court, a foundation will have been laid for Congress to pass Medicare For All under precedents established when Medicare was passed and challenged 45 years ago.

Just so we're clear on agendas, know that these court challenges have nothing to do with the individual mandate and everything to do with insurers' objections to the Affordable Care Act ending insurers' right to exclude for pre-existing conditions. That has been, and will continue to be, the core of corporate objections to the Affordable Care Act.

The judge's ruling was purely procedural; that is, he did not consider the merits of Virginia's argument, only whether the case should be allowed to proceed. The White House fired back a response and a shot across the bow:

After all, over 70 years of settled law is on the side of the Affordable Care Act. In order to make health care affordable and available for all, the Act regulates how to pay for medical services – services that account for more than 17.5% of the national economy. This law came into being precisely because of the interconnectedness of our health care costs. People who make an economic decision to forego health insurance do not opt out of the health care market, but instead shift their costs to others when they become ill or are involved in an accident and cannot pay.

We do not leave people to die at the emergency room door – whether they have insurance or not. Those costs – $43 billion in 2008 alone – are borne by doctors, hospitals, insured individuals, taxpayers and small businesses, in Virginia and throughout the nation. According to a recent study, this cost-shift added on average $1,100 to family premiums in 2009 and roughly $410 to an individual premium.

Bottom line: This ruling doesn't really mean much, but conservatives will use it as a crowing point during the summer recess to stoke up the teabag machine and grind out nightly Fox News blurbs.

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