Last week, I wrote that the future of health care reform became a little more secure, thanks to a federal judge in Michigan. On Thursday, the future of health care reform became a little less secure, thanks to a federal judge in Florida.
The Michigan judge had issued the first ruling in a lawsuit challenging the constitutionality of the Affordable Care Act's requirement that all Americans obtain health insurance. He ruled against the plaintiffs, arguing that the individual mandate, as it is known, is necessary in order to regulate health insurance as Congress sees fit. As such, the judge argued, it falls within the federal government's authority to regulate interstate commerce. In addition, the judge ruled, Congress has the power to levy taxes. And the mandate could be considered a tax.
Both arguments were broadly in line with the briefs the Obama Administration had filed.
The Florida judge did not reject that logic. In fact, he hasn't even ruled yet--he's merely allowing the lawsuit filed in his court to go forward. But in rejecting the government's request that the case be dismissed, he indicated he would not accept the tax argument--and he did so with a rhetorical flourish. Noting that Congress had specifically opted not to call the mandate a tax, he likened the Obama Administration's argument to "Alice in Wonderland" logic.
He didn't say anything so definitive about the Commerce Clause argument and it's entirely possible that, once he actually rules on the case, he'll uphold the mandate on that basis. On the other hand, he rejected arguments that the challenge to the law was wrong on its face--an argument that Obama Administration and its supporters have made.
Most law professors that I know think that, under a traditional reading of the Commerce Clause, this shouldn't be a close call: The power to require insurance is clearly ok. They say it would take a pretty radical departure to throw out the Affordable Care Act. But there are a lot of radically conservative judges on the bench right now, including a few who sit on the Supreme Court, where this case will likely end up someday.
I hope to have more to say on this later on, once I've had time to digest more of the legal material--and I'm not traveling.