Legal Conservative Blog

Update on Constitutionality of Healthcare Lawsuit -DOJ Response

The Federal Government had just filed its motion to dismiss and memo of law in support in the case Attorney General McCollum filed in the Northern District of Florida, Case No. 3: 1 O-cv-91-RV/EMT.  The memo of law is here DOJ MTD Memo 55-1.  Analysis of the points raised in the motion will follow.

The Federal Government summarizes its case as follows:

Plaintiffs’ challenge to the provisions addressing insurance provided to a State’s own employees fails on jurisdictional grounds and on the merits. The plaintiff States currently offer insurance to their employees and plaintiffs do not allege that their insurance plans are inadequate under the ACA. Thus, plaintiffs cannot show that they will be injured by the provisions they challenge. In any event, it is settled that Congress may impose on State employers the same type of requirements that it imposes on private employers. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1968).

Plaintiffs’ challenge to the minimum coverage provision likewise presents no case or controversy. The provision will not take effect until 2014, and it is entirely speculative whether the individual plaintiffs will be injured. The States and the National Federation of independent Businesses have no standing to challenge this provision either. And the Anti-Injunction Act bars injunctive relief against payment of a tax penalty. See 26 U.S.C. (I.R.C.) § 7421.

Even if plaintiffs had standing to challenge the minimum coverage provision, the challenge would fail. The minimum coverage provision is well within Congress’s authority under the Commerce Clause. Congress rightly understood, and plaintiffs do not deny, that virtually everyone at some point needs medical services, which cost money. The ACA regulates economic decisions about how to pay for those services – whether to pay in advance through insurance or attempt to do so later out of pocket – decisions that, “in the aggregate,” substantially affect the $2.5 trillion interstate health care market. Gonzales v. Raich, 545 U.S. 1,22 (2005). Among other things, Congress found that these economic decisions shift costs to third parties, ACA §§ 1 501 (a)(2)(F), 10106(a); “increas[e] financial risks to households and medical providers,” id. §§ 1501(a)(2)(A), 10106(a); raise insurance premiums, id. §§ 1501(a)(2)(F), 10106(a); precipitate personal bankruptcies, §§ 1501 (a)(2)(G), 10106(a); and impose higher administrative expenses, id. §§ 1501 (a)(2)(J), 10106(a). Congress determined that, without the minimum coverage provision, the reforms in the Act, such as the ban on denying coverage based on pre-existing conditions, would not work, as they would amplify existing incentives for individuals to “wait to purchase health insurance until they needed care,” shifting even greater costs onto third parties. Id. §§ 1501(a)(2)(I), 10106(a). Congress thus found that the minimum coverage provision “is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.” Id. Congress also concluded that requiring the financially able to purchase insurance would spread risks across a larger pool and lower premiums. Id. §§ 1501(a)(2)(I), 10106(a). Congress’s authority under the Commerce Clause and Necessary and Proper Clause to adopt the minimum coverage provision is thus clear.

In addition, Congress has independent authority to enact this statute as an exercise of its power under Article I, Section 8, to lay taxes and make expenditures to promote the general welfare. License Tax Cases, 72 U.S. (5 Wall.) 462, 471 (1867). The minimum coverage provision – in particular, the requirement in the Internal Revenue Code that individuals pay a tax penalty if they do not have the requisite coverage – will raise substantial revenue. The Supreme Court has long held that an exercise of this power is valid even if it has a regulatory function, even if the revenue purpose is subsidiary, and even if the moneys raised are only “negligible.” United States v. Sanchez, 340 U.S. 42, 44 (1950). It is equally clear that a tax predicated on a volitional event – such as a decision not to purchase health insurance – is not a “direct tax” subject to apportionment under Article I, Sections 2 and 9. United States v. Mfrs. Nat ‘I Bank of Detroit, 363 U.S. 194, 197-98 (1960); Tyler v. United States, 281 U.S. 497, 502 (1930).

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Posted on June 18th, 2010 by Woodring Law, filed under Uncategorized
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Supreme Court Ruling in Graham: Life Without Parole for Juvenile

Having just read this decision, and the evolution of the evolving standards of decency and proportionality review, in addition to the first ever time that I remember the court completing a social study that was cited  by a party, and using it to justify the holding in the case- all I can say is wow- second time in about 20 years I have been rendered speechless by the tortured logic of a U.S.C.T. decision.

08-7412.pdf application/pdf Object.

This really does deserve a fuller review, so more analysis to follow.

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Posted on May 17th, 2010 by Woodring Law, filed under Uncategorized
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Amended complaint filed in Florida Challenge to Healthcare Act

Here it is – weekend reading, the amended complaint filed by Attorney General Bill McCollum in the challenge to the constitutionality of the health care act.  Analysis to follow.   AMENDED COMPLAINT FINAL Date Stamped 051410

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Posted on May 14th, 2010 by Woodring Law, filed under Uncategorized
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Experts Split on State Lawsuits Over Health Care Law – NYTimes.com

Experts Split on State Lawsuits Over Health Care Law – NYTimes.com.

Will have to give the times their due, this is a more reasoned explanation of the key issues in the case then most analysis I have seen by the Times.

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Posted on May 11th, 2010 by Woodring Law, filed under Uncategorized
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Lawsuit filed by McCollum Challenging Constitutionality of Healthcare Legislation

Attached is a copy of the suit just filed challenging the constitutionality of President Obama’s Health Care Legislation. Analysis to follow, but wanted to get the suit up immediately, it has been filed in Federal Court in the Northern District of Florida.  Healthcare Unconstitutional COMPLAINT (03-23)

Ok, having had time to review the complaint, the basic arguments are summarized below:

  1. Congress has no Constitutional authority to pass this healthcare act, not authority under Art I, or specifically the commerce clause or the taxing and spending clause.
  2. Congress, by depriving the states of control over their budget processes because of  the unfunded mandates in this bill, has deprived the states of their sovereignty and the right to a republican form of government guaranteed under Art IV, Sec. 4 of the constitution.
  3. Congress has violated the states’ 10th amendment rights by requiring that states and state employees be agents of the Federal Government to enforce Federal Regulation, without federal payment.
  4. Congress imposing a tax penalty for failure to have insurance is a violation of Art I, Sections 2 and 9, in that this is a direct that is not apportioned among the states according to a census, and is unrelated to any taxable activity or income.
  5. Congress imposing a tax penalty for inactivity or a failure to engage in an activity is in violation of the powers reserved to the States or the people under the 10th amendment, and is not predicated on any constitutional grant of authority to congress.

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Posted on March 23rd, 2010 by Woodring Law, filed under Uncategorized
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Blogger Status Update

Some of you may have wondered whether there would be anymore updates, and the answer is yes- there are plenty of interesting matters to cover. For the past two months I just was caught up in some major client projects- do have to pay the bills after all, and as the father of 4 month old twins, adorable but demanding. look for new posts shortly, and don’t forget to send me suggestions of cases to cover, thanks.

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Posted on March 19th, 2010 by Woodring Law, filed under Uncategorized
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Update on Sansom Odom Appeal 1st DCA opinion 09-5158

Well if you remember the October 15th Post on the Motion to Dismiss charges against Sansom and Odom, we predicted the odds of a reversal on appeal would be slim, and the IST DCA has just turned down the appeal as to Sansom and Odom as one that that State had no jurisdiction to file.  Sansom09-5158 T he Rationale: “Plainly, the circuit court’s order here does not dismiss an indictment or any count thereof, and because there is otherwise no statutory authority for the state to appeal in this circumstance, we are without jurisdiction.” Interestingly, they have yet to rule on the Richburg  appeal, because the trial judge in that order did dismiss a count in the indictment and so the State did have jurisdiction to appeal.

Well, as a practical matter, this means that the SA has a greatly weakened case against Sansom and Odom, (as noted earlier, probably not without reason) and if there is an acquittal in the remaining portion of the case, suspect it is unlikely that an appeal of these initial matters will be taken at that time.  SA now has to decide whether the case is even worth bringing on the remaining grounds.

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Posted on December 31st, 2009 by Woodring Law, filed under Uncategorized
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Ist DCA issues ruling in Prison Ministries Case- Finds Plaintiffs have stated a Claim

This morning the First DCA  issued its decision in 08-4713 COUNCIL FOR SECULAR HUMANSIM, INC., RICHARD HULL and ELAINE HULL, v. WALTER A. MCNEIL, in his official capacity as Secretary of Corrections of Florida: PRISONERS OF CHRIST, INC., a Florida corporation; and LAMB OF GOD MINISTRIES, INC., Florida corporation. The Court basically reversed the trial courts dismissal of the complaint and under its prior ruling in Bush v. Holmes said that plaintiffs had stated a cause of action under Article I, section III of the Florida Constitution.

Count 0ne of the Complaint alleged that Count I of the amended petition alleged that ” payments to these organizations [faith-based substance abuse transitional housing programs of appellees Prisoners of Christ, Inc. (Prisoners) and Lamb of God Ministries, Inc. (Lamb of God)} constituted payments to churches, sects, religious sects, religious denominations or sectarian institutions contrary to the so-called “no-aid” provision in Article I, section 3 of the Florida Constitution.

As to this count, the Court held that  “In the case under review, the trial court was erroneously persuaded by appellees that this court’s decision in Holmes I was limited explicitly to the school context.”  This holding by the court is not suprising, since the logic of Holmes I was never limited to just the education context- the State Defendants in that case had strenuously argued the Court logic would apply to a host of other programs, although the Plaintiffs in Holmes argued that was not the case.

So, under the Court’s holding today, what programs are at jeopardy under Article 1, section 3?  Well, the Court hedges a bit by referring to some Georgia cases, but says the case is being sent back, and “the inquiry here is whether the programs funded by sections 944.473 and 944.4731 and provided by Prisoners and Lamb of God are predominantly religious in nature and whether the programs promote the religious mission of the organizations receiving the funds.”

The court does this in spite of dropping a footnote, in which they say that  “We recognize that, as asserted by appellees, the services received by the state under the programs here serve legitimate penological goals.”

So, taken together, this decision could fairly be read to be saying that even in a competitive state procurement process, in which the services received by the state would serve legitimate secular purposes, if the organization that is providing the services is genuinely a religious organization- Sectarian has traditionally been considered a religious slur when used to refer to an institution- and if the provisions of services furthers the religious institutions mission, the state must discriminate against that religious entity.

So, once again, a group such as FSU’s Methodist and Very Religious College Students, Inc- formed for the purpose of  funding missionaries and providing for the homeless, could not bid on a state contract they were other wise qualified for to, for example, distribute surplus state blankets to the homeless and collect current data on recipients.

If this is really true, while the court made a passing reference to the USCT decision in Locke, this may very well run afoul of the Establishment of Religion and Free Exercise Clause of the Federal Constitution- Locke is distinguishable on several grounds, and appears to have been narrowly written, but is probably incorrectly decided as well.

It appears that we will now have judges weighing how religious is too religious- perhaps a new scale with degrees of religiosity.

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Posted on December 15th, 2009 by Woodring Law, filed under Uncategorized
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Selective Empathy – Opinionator Blog – NYTimes.com

Selective Empathy – Opinionator Blog – NYTimes.com.

Greenhouse has some interesting thoughts about a very unusual per curiam opinion that was issued by the U. S. Supreme Court in a Florida ineffective assistance of counsel  capital case, Porter, this week.  Basically, the court said that failure to present evidence at the sentencing portion of the trial about his military service during the Korean War, even though he had twice been AWOL during the War as well, was ineffective assistance of counsel – creating almost a per se rule  of ineffectiveness in case where someone has military services, and doing this in a case in which they never even entertained full briefing or oral argument.

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Posted on December 4th, 2009 by Woodring Law, filed under Uncategorized
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Landowners along Florida beaches ask Supreme Court to examine taking of private property – washingtonpost.com

Landowners along Florida beaches ask Supreme Court to examine taking of private property – washingtonpost.com.   Good high level analysis of the takings case that will be heard by the Supreme Court December 2- I will be in DC that Day but am speaking during the OA and unfortunately will not be able to attend- it should be an interesting OA if it focuses on the concept of judicial taking, Scott Makar will be doing the  argument for the State.

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Posted on November 24th, 2009 by Woodring Law, filed under Uncategorized
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