Michigan judge finds health care bill constitutional

DETROIT (AP) — A federal judge on Thursday upheld the authority of the federal government to require everyone to have health insurance, dealing a setback to groups seeking to block the new national health care plan.

The ruling came in a lawsuit filed in Michigan by a Christian legal group and four people who claimed lawmakers exceeded their power under the Constitution’s commerce clause, which authorizes Congress to regulate trade.

But Judge George Caram Steeh in Detroit said the mandate to get insurance by 2014 and the financial penalty for skipping coverage are legal. He said Congress was trying to lower the overall cost of insurance by requiring participation.

"Without the minimum coverage provision, there would be an incentive for some individuals to wait to purchase health insurance until they needed care, knowing that insurance would be available at all times," the judge said.

"As a result, the most costly individuals would be in the insurance system and the least costly would be outside it," Steeh said. "In turn, this would aggravate current problems with cost-shifting and lead to even higher premiums."

Julian Davis Mortenson, a University of Michigan law professor and former U.S. Supreme Court law clerk, said the decision affects only the parties in the lawsuit and is not binding on any other federal judges hearing challenges to the law.

Nonetheless, the Justice Department hailed Steeh’s opinion as the first time a "court has considered the merits of any challenge to this law."

"The court found that the minimum coverage provision of the statute was a reasonable means for Congress to take in reforming our health care system," spokeswoman Tracy Schmaler said. "The department will continue to vigorously defend this law in ongoing litigation."

Robert Muise of the Thomas More Law Center in Ann Arbor, Mich., which filed the case, said he would take it to a federal appeals court in Cincinnati.

The four individual plaintiffs said they do not have private insurance and object to being forced to buy it. They also fear that any financial penalty paid to the government would be used to pay for abortions.

In Florida, a federal judge is overseeing a lawsuit filed by 20 states. They, too, say the law is unconstitutional and claim it would force states to absorb higher Medicaid costs.

A decision on whether to dismiss the case is expected by Oct. 14, though the judge said last month that he would probably dismiss only parts of the complaint while letting others go to trial.

There is also a lawsuit pending in Virginia.

Randy Barnett, who teaches constitutional law at Georgetown University, said Steeh’s ruling could be cited by lawyers trying to persuade other judges.

"This is one judge’s opinion. They’ll read it," Barnett said. Steeh "accepted the government’s argument, the same argument that’s being made in front of other judges."

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Cox says he’ll challenge health care law

I’m not sure if you’ve heard yet, but Congress passed a health care reform bill on Sunday that President Obama is expected to sign today.

Michigan Attorney General, GOP gubernatorial candidate and The People’s Champion Mike Cox thinks it goes too far and says he’s filing a challenge to the soon-to-be law in federal court. It’s chances of success? About as good as the Lions’ chance to win the Super Bowl, says Orin Kerr at The Volokh Conspiracy.

With all this blogging here at the VC about whether the courts will invalidate the individual mandate as exceeding Congress’s Article I authority, I thought I would add my two cents by estimating the odds of that happening. In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9–0 (or possibly 8–1) vote to uphold the individual mandate.

The Volokh Conspiracy is a collection of mostly conservative law professors from around the country that blog about current themes in the law. None of them like the bill, natch, but all who have written about it on the blog seem to think it will survive court challenges.

[UPDATE: Not to be outdone, fellow GOP gubernatorial candidate Rep. Pete Hoekstra vows to do the same.]

So why do it? Why waste a broke state’s money challenging a law when other states are already planning the same thing? Probably for the same reason he keeps fighting, and losing, the Asian carp battle: because he’s running for governor.

A petition drive has also been started to try to exempt Michigan from the law, which Wake Forest law professor Mark Hall says is also futile:

Experts say none of it is likely to work, but it will keep the issue, and the outrage, alive until Election Day.

"I am surprised by the mobilization of the states. It does strike me as a kind of civil disobedience, a declaration that we’re not going to follow the law of the land," said Mark Hall, a professor of law and public health at Wake Forest University.

"It doesn’t make sense. The federal Constitution couldn’t be any clearer that federal law is supreme," Hall added.

Which is what the GOP wants: to turn the 2010 election into a referendum on health care with talk of repeal and such. Will that work? Conservative columnist David Frum says nuh-uh:

No illusions please: This bill will not be repealed. Even if Republicans scored a 1994 style landslide in November, how many votes could we muster to re-open the “doughnut hole” and charge seniors more for prescription drugs? How many votes to re-allow insurers to rescind policies when they discover a pre-existing condition? How many votes to banish 25 year olds from their parents’ insurance coverage? And even if the votes were there – would President Obama sign such a repeal?

We followed the most radical voices in the party and the movement, and they led us to abject and irreversible defeat.

Frum, a former Bush speechwriter, said the GOP should have taken Obama’s offer of bipartisanism to work more conservative elements into the bill. But cooperation and bipartisanism doesn’t win elections.