Challengers get outlawyered

Ian Gershengorn was at it again for the third time — and not the last — defending the legality of the national health care overhaul against an onslaught of angry naysayers.

"The state is free to disagree with the policy judgment of Congress," he told the judge at the close of his argument. "It's not free to overturn 75 or 100 years of constitutional law."

The lanky, Harvard-educated Justice Department lawyer, who clerked for the recently retired liberal leader of the Supreme Court, John Paul Stevens, had traveled from Washington to deeply unfriendly territory in Florida.

State Attorney General Bill McCollum, a Republican leading a 20-state challenge to the law, and Washington lawyer David Rivkin had filed the case in Pensacola's federal courthouse, perhaps the most conservative in the state.

Here, plaintiffs are guaranteed a Republican-appointed judge. All three federal judges in this Gulf Coast city near the Alabama border were named by one Republican president or another.

It was Ronald Reagan who nominated U.S. District Court Judge Roger Vinson to the bench 27 years ago. White-haired and robust at 70, the former naval aviator and camellia devotee proved himself at this week's hearing to be an engaged questioner.

As you might expect, his comments signaled an affinity with the states in this polarized and partisan fight.

States were "almost powerless" and got "the short end of the stick" when Congress expanded Medicaid eligibility as part of the package, Vinson remarked during Gershengorn's presentation.

He implied the Justice Department's legal position isn't "intellectually honest" when it calls the penalty for not buying health insurance a tax. Didn't Obama and Democrats in Congress insist it wasn't a tax?

The judge accused Gershengorn of "trying to turn the word upside down" by claiming it is economic activity, not inactivity, when people don't buy insurance.

That is key because the Constitution authorizes Congress to regulate interstate economic activity. And while the Supreme Court has broadly interpreted such activity, the debate now is whether Congress can punish people for not buying a product.

It's the point on which the whole case, and the survival of health care reform, could turn.

But not yet.

At this early stage, Vinson will decide whether the state's claims are so legally off-base that they should be tossed out of court. That is what the Justice Department seeks.

It got such a ruling in a California case filed by a man the judge said had sued too soon. Until the program goes into effect, he can't claim to have been injured by it, the California ruling held.

That same argument, and others, failed to kill a suit the commonwealth of Virginia filed in Richmond, however, where Gershengorn argued for the government. He also argued in Michigan, where a judge is trying to decide whether to toss out a suit filed by a conservative Christian legal group.

More than 15 suits have been filed around the country aimed at halting what some derisively call Obamacare.

But the one in Florida is the heftiest because 20 states are behind it. And there, while the states may have outmaneuvered the federal government politically, this week their side was getting outlawyered. The judge's questions weren't entirely one-sided, and he indicated his ruling won't be, either.

However articulate his main argument, Blaine Winship, an assistant Florida attorney general, had a weak answer when the judge asked him why this lawsuit shouldn't be dismissed as premature like the California case was.

"The difference is the equality of allegations," Winship responded, whatever that means.

Likewise, the states missed a step when arguing that not buying insurance can't be considered economic activity that Congress can regulate, although the judge appeared to need no convincing on the point.

But first, the federal government's view. Gershengorn said that what appears to be economic inactivity is activity because almost everyone eventually needs medical services. The uninsured simply shove the cost onto others. And that is activity that Congress can regulate under the Constitution's Commerce Clause.

Rivkin, who advised the first President Bush on deregulation, now represents corporations and advocates for conservative causes from the Washington office of Baker & Hostetler. One of the instigators of the suit, he attacked the argument that the government can step in simply because the uninsured will probably need a doctor some day.

"If the future alleged inevitability allows the government to regulate them under the Commerce Clause, then government can regulate an infinite number of activity and inactivity," Rivkin argued.

Fine. But then came this analogy. He said forcing people to buy insurance would be like requiring them to buy bread and water just because everyone needs it.

Actually, it's not like that at all.

Anyway, Vinson asked Rivkin whether it would be constitutional to levy a penalty on the uninsured when they show up at a hospital or doctor's office.

Yes, the government could do that, Rivkin said.

This gave Gershengorn a chance to diminish Rivkin's main point. So, he said when his turn came again, all we are talking about is the timing of the penalty, not the right of the government to impose it.

Vinson says he will rule by Oct. 14. But whatever he says will only be a small step toward resolution of these issues, which will wind up before the Supreme Court.

In the meantime, the legal debate is as intense as the politics, which are inextricably linked.

Ann Woolner is a Bloomberg News columnist.

© 2010, Bloomberg News

Challengers get outlawyered 09/18/10 [Last modified: Saturday, September 18, 2010 5:31am]

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