Obamacare will go to trial in Florida Update

Federal District Court Judge Roger Vinson ruled today that the law suit filed by the State of Florida, and joined by 19 other states, will go to trial.

When Florida filed the suit last March, the federal government filed what we lawyers call a Motion to Dismiss.  In other words, the government took the position that Florida’s complaint had absolutely “no merit”.  That’s a fancy legal term that best translates to “there is absolutely no way the State of Florida can win”.

The judge held arguments last month on the government’s motion, and he issued his ruling today.  I have not had a chance to read the court’s opinion.  But, what I do know is that the question of whether the individual mandate (that’s the part where you must buy insurance or else) is constitutional is one of the claims that will go to trial.

I’ll keep you posted once I read the opinion, but thought you’d at least like to know this much.

Update:

Judge Vinson’s opinion really takes the federal government to task on their argument that Congress had the power to mandate that all must buy insurance under its “power to tax.” 

To summarize the foregoing, it “clearly appears” from the statute itself…that Congress did not intend to impose a tax when it imposed the penalty. To hold otherwise would require me to look beyond the plain words of the statute. I would have to ignore that Congress: (i) specifically changed the term in previous incarnations [both the Waxman and the Baucus] of the statute from “tax” to “penalty;” (ii) used the term “tax” in describing the several other exactions provided for in the Act; (iii) specifically relied on and identified its Commerce Clause power and not its taxing power; (iv) eliminated traditional IRS enforcement methods for the failure to pay the “tax;” and  (v) failed to identify in the legislation any revenue that would be raised from it, notwithstanding that at least seventeen other revenue-generating provisions were specifically so identified. (see page 18)

After referring to the federal government’s argument (that the penalty for failure to purchase insurance is really a tax) as an “Alice in Wonderland tack” (see page 28), the court went on to say,

[Congress] cannot, however, use a different linguistic with a perhaps secret understanding between themselves that the word [penalty], in fact, means something else entirely.  (See page 29)

So, according to the court, if the individual mandate is to pass constitutional muster, 

…it must be sustained as a penalty imposed in aid of an enumerated power, to wit, the Commerce Clause power.

And, as to the Commerce Clause argument, the court recognizes that using the Commerce Clause in this fashion is “without precedent”.

The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive. (See page 63)

And, in so saying, the court seriously undermines the federal government’s argument that 2 prior Supreme Court decisions clearly support the position that “inactivity” can be regulated under the Commerce Clause.

The federal government will have another chance to explain to the court why Congress can regulate inactivity at the scheduled December 16 hearing, but, it certainly appears that what the federal government has argued so far isn’t going to get the job done.