DJP Update 1-31-2011 Federal health law, PPACA, declared unconstitutional in U.S. Fed Ct in Florida (Pensacola Division)
DJP Comment: Haste makes waste. In the rush of Congress to pass PPACA after Senator Brown’s election (no longer had 60 senate votes for cloture), someone failed to insert a “severability clause”. Thus, if one part of law unconstitutional, then the entire law falls. Or maybe the framers of PPACA did not want the law to stand if the individual mandate was declared unconstitutional. Who knows? Perhaps Congress doesn’t know what they wanted in the rush.
Short excerpt from opinion:
“In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practical matter), it is reasonably “evident,” as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, and that Congress did not believe other parts of the Act could (or it would want them to) survive independently. I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit. The individual mandate cannot be severed.”
More info from State of Florida Attorney General’s Office below in media notice plus there is a link to the full opinion.
DJP
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11
http://www.myfloridalegal.com/newsrel.nsf/newsreleases/3C1041AF8C36B957852578290073A9B8
January 31, 2011
Media Contact: Jennifer Krell Davis
Phone: (850) 245-0150
U.S. District Court Judge Finds the Federal Health Care Law Unconstitutional
TALLAHASSEE, FL – Attorney General Pam Bondi today announced that Florida, along with 25 other states and the National Federation of Independent Business, prevailed in federal court where Judge Roger Vinson struck down the federal health care law as unconstitutional. The Attorney General’s Office filed the lawsuit in response to President Obama signing the Health Care Reform Bill into law last March.
“Today’s ruling by Judge Vinson is an important victory for every person who believes in the freedoms granted to us by our Constitution,” said Attorney General Bondi. “This proves that the federal government requiring Americans to purchase health insurance is in fact unconstitutional. In addition, the bipartisan effort from Attorneys General across the country shows the federal government that we will not back down from protecting the constitutional rights of our citizens.”
The lawsuit, filed last March, alleged the new law infringed upon the constitutional rights of Floridians and residents of the other states by mandating all citizens and legal residents have qualifying health care coverage or pay a penalty. The law would also coerce citizens into an expansive Medicaid program which would result in enormous costs to taxpayers.
“NFIB is extremely pleased with Judge Vinson’s decision,” said Bill Herrle, executive director of NFIB/Florida. “NFIB joined this case to protect the rights of small-business owners to own, operate, and grow their businesses free from unconstitutional government intervention. The individual mandate gives the federal government entirely too much power. Small business owners are delighted Judge Vinson agreed with NFIB and Attorney General Bondi on this critical issue.”
A copy of today’s ruling is available at:
http://myfloridalegal.com/webfiles.nsf/WF/JDAS-8DMNTD/$file/VinsonRuling1312011.pdf
DJP Comment: Here is an important excerpt from the 78 page opinion:
Severing the individual mandate from the Act along with the other insurance reform provisions — and in the process reconfiguring an exceedingly lengthy and comprehensive legislative scheme — cannot be done consistent with the principles set out above. Going through the 2,700-page Act line-by-line, invalidating dozens (or hundreds) of some sections while retaining dozens (or hundreds) of others, would not only take considerable time and extensive briefing, but it would, in the
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 72 of 78
Page 73 of 78
end, be tantamount to rewriting a statute in an attempt to salvage it, which is foreclosed by Ayotte, supra. Courts should not even attempt to do that. It would be impossible to ascertain on a section-by-section basis if a particular statutory
provision could stand (and was intended by Congress to stand) independently of the individual mandate. The interoperative effects of a partial deletion of legislative provisions are often unforseen and unpredictable. For me to try and “second guess” what Congress would want to keep is almost impossible. To highlight one of many examples, consider the Internal Revenue Service Form 1099 reporting requirement, which requires that businesses, including sole proprietorships, issue 1099 tax forms to individuals or corporations to whom or which they have paid more than $600 for goods or services in any given tax year [Act § 9006]. This provision has no discernable connection to health care and was intended to generate offsetting revenue for the Act, the need of which is greatly diminished in the absence of the “health benefit exchanges,” subsidies and tax credits, and Medicaid expansion (all of which, as the defendants have conceded, “work in tandem” with the individual mandate and other insurance reform provisions). How could I possibly determine if Congress intended the 1099 reporting provision to stand independently of the insurance reform provisions? Should the fact that it has been widely criticized by both Congressional supporters and opponents of the Act and the fact that there have been bipartisan efforts to repeal it factor at all into my determination?
In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed. There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions — which, as noted, were the chief engines that drove the entire legislative effort — for me to try and dissect out the proper from
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 73 of 78
Page 74 of 78
the improper, and the able-to-stand-alone from the unable-to-stand-alone. Such a quasi-legislative undertaking would be particularly inappropriate in light of the fact that any statute that might conceivably be left over after this analysis is complete would plainly not serve Congress’ main purpose and primary objective in passing the Act. The statute is, after all, called “The Patient Protection and Affordable Care Act,” not “The Abstinence Education and Bone Marrow Density Testing Act.” The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker. If Congress intends to implement health care reform — and there would appear to be widespread agreement across the political spectrum that reform is needed — it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not. It is Congress that should consider and decide these quintessentially legislative questions, and not the courts.
In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practical matter), it is reasonably “evident,” as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, and that Congress did not believe other parts of the Act could (or it would want them
to) survive independently. I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit. The individual mandate cannot be severed. This conclusion is reached with full appreciation for the “normal rule” that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute, but non-severability is required based on the unique facts of this case and the particular aspects of the Act. This is not a situation that is likely to be repeated.
Case No.: 3:10-cv-91-RV/EMT
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Stay well,
Donald
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