February 2, 2011 - 2:05 am
Former Gov. Jim Gibbons wasn’t around to say it Monday, but if he were, it might have gone something like this: “I told you so.”
U.S. District Court Judge Robert Vinson, a Republican appointee, ruled Monday the Patient Protection and Affordable Care Act — aka health care reform — is unconstitutional because it requires all Americans to purchase health insurance. Vinson decided Congress doesn’t have the power to pass such a requirement, and, because the entire law rested upon that premise, it’s void.
Aside from the sweep of the ruling, there were three remarkable things about the decision: One, it came in nearly record time for a federal case with national implications. Two, a trick of legislative writing may have doomed it. And three, a Las Vegas attorney was part of the proceedings.
Mark Hutchison was appointed by Gov. Gibbons in April to represent Nevada in the case, after Attorney General Catherine Cortez Masto refused to join the litigation.
(Cortez Masto said she thought the case was without merit. Gibbons appointed Hutchison by executive order, which remains in effect under Gov. Brian Sandoval, who also opposes the health care law. Hutchison is litigating the case pro bono.)
Hutchison acknowledged the ruling was swift, coming less than a year after the case was first filed. But he said Judge Vinson reviewed plenty of evidence, including an affidavit by Nevada Health and Human Services Director Mike Willden, which the judge mentioned in his ruling.
One fascinating part of the decision is this: If Congress had included a so-called severability clause, some portions of the law might have survived. (The clause basically says if one part of the law is struck down — say, the individual mandate — the rest of the law remains intact.)
Earlier versions of the act contained that clause, Hutchison said, but the final version didn’t. Vinson concluded Congress didn’t want only some portions of the law to survive a judicial buzz saw.
That also avoided an insurance company nightmare scenario: All the costly requirements to cover people regardless of pre-existing conditions, without a mandate to sweep as many healthy (and thus less costly) customers into the system.
For Hutchison, the ruling is a victory he thinks will continue through to the U.S. Supreme Court.
“We feel confident about the Supreme Court,” he said. “If the Supreme Court ultimately upholds this, we’re living in a brave new world.” What’s to stop Congress from requiring Americans to buy any product, Hutchison asks, from guns to newspapers?
Even supporters admit the law is a sweeping change to health care financing. But they note there were many radical firsts in American law, from school desegregation to voting rights for blacks and women to abortion rights to Social Security and Medicare. Each was controversial in its time, but that controversy has faded into history.
The law’s supporters should cheer the ruling just as much as Hutchison, since it takes the country one step closer to finding out whether Congress really does have the right — under the Commerce Clause of the Constitution — to require Americans to buy health insurance.
Almost everybody has a view as to whether that’s constitutional, but only after the Supreme Court decides will we know for sure.
If not, we’re back to the way things were before the law passed, with less cost to states, but also lifetime coverage limits, coverage denials due to pre-existing conditions, children aging out of their parents’ insurance and all the rest.
But if so, then Hutchison’s right: We really will be living in a brave new world.
Steve Sebelius is a Review-Journal political columnist. His column runs Sunday, Tuesday, Wednesday and Friday. He can be reached at firstname.lastname@example.org, or at 592-6058.