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Enemies of Obamacare Should Curb Their Enthusiasm: Ann Woolner

A federal judge in Pensacola, Florida, gave enemies of the national health care reform law reason to rejoice last week when he said it looks sort of unconstitutional.

“This ruling is a victory for the states, small businesses and the American people,” crowed Florida Attorney General Bill McCollum, one of the leaders behind the challenge.

Might I suggest a curbing of enthusiasm? A closer look at this and other health-care rulings shows the legal case against so-called Obamacare has a long, difficult slog ahead.

You wouldn’t know that from some of the language in U.S. District Court Judge Roger Vinson’s 65-page decision last week. He slammed the notion Congress has the constitutional authority to require all Americans to buy health insurance.

“The power that the individual mandate seeks to harness is simply without prior precedent,” Vinson said.

The case is in an early stage, so he hasn’t yet actually struck down the law. Vinson merely said the appearance of unconstitutionality is strong enough to keep the case going. As a starting point, Vinson’s order cheers Obamacare haters.

“This is not even a close call,” the judge wrote.

But if it’s that obvious, at least one other judge would have reached the same conclusion on the same question. None have.

U.S. District Judge Henry Hudson of Richmond, Virginia, ruled in August that it’s not the least bit clear whether Congress can do what it did. Hudson wanted more argument before deciding.

Yes, No, Undecided

The answer is clear to a federal judge in Detroit, but he reached the opposite conclusion from Vinson’s. U.S. District Judge George Steeh said the insurance mandate clearly falls within Congress’s constitutional authority to regulate interstate commerce.

To recap, one judge says yes, one says no, and one is undecided. That seems like a close call to me.

And yet, that one, commerce-clause argument is the strongest one left in the case before Vinson, who tossed out four other reasons offered for why the law should be struck down.

Barely surviving his pen is the notion that by greatly expanding Medicaid, a joint federal-state program for the poor, Congress is unconstitutionally coercing states to spend money they don’t want to spend.

That claim, the judge ruled, is indeed a “close call.”

So there’s a good chance he’ll pare that out of the case, too, leaving only the pivotal question of whether Congress overstepped its authority under the Commerce Clause.

Twenty States

The case in Vinson’s court has been widely viewed as the heftiest of the 15 to 20 legal challenges to the health-care overhaul filed around the country. It was brought by attorneys general or governors from 20 states, plus the National Federation of Independent Business, a small business owner and a man who doesn’t want to buy health insurance.

If Vinson tosses out the states’ Medicaid coercion claim, the states will no longer be plaintiffs. It’s the last ground the states have to stand on because the judge last week dismissed the other claims that state sovereignty trumps Washington in this matter.

The best chance for a states’ rights argument to win is in Virginia. The commonwealth has a unique case because its legislature passed the Virginia Health Care Freedom Act, which says Virginians can’t be forced to buy insurance.

Bush, Reagan, Clinton

The conflict between state and federal law gives the commonwealth standing to sue in a way that other states don’t have. Even if Hudson says Virginia’s trumps federal law, it won’t much help states that don’t have their own statutes. (It isn’t clear whether passing such a law after the federal one was enacted would work. Virginia’s was signed into law immediately after Obama signed the federal law, but before Congress completed the final version.)

You may be wondering about judicial bias given the polarized politics of the issue. George W. Bush named Hudson in Virginia. Ronald Reagan nominated Vinson in Florida. Steeh in Michigan is a Bill Clinton appointee.

Hudson and Steeh’s rulings read like court orders should, displaying no obvious bias, hitting the legal points and not exploring political concerns, which are fierce in this controversy.

Vinson, on the other hand, leaves little doubt where he stands personally and politically. For a taste, here he is describing how the law was passed:

“Some say it was the product of an open and honest process between lawmakers sufficiently acquainted with its myriad provisions, while others contend that it was drafted behind closed doors and pushed through Congress by parliamentary tricks, late night weekend votes, and last minute deals among members of Congress who did not read or otherwise know what was in it.”

Let’s see. Any guesses as to which view the judge holds?

No Relevance

Look, some of the shenanigans involved in the bill’s passage were shameful. But that has nothing to do with whether the law is constitutional or Vinson’s job in determining it, as the judge acknowledges.

But then, that’s why this case was brought to Pensacola, because only conservative, Republican-appointed judges sit there.

The fact that Vinson killed most of the lawsuit means either that his obvious bias didn’t interfere with his judgment, or that the part he left alive is a much closer call than he says.

(Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)

To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net

To contact the editor responsible for this column: James Greiff at jgreiff@bloomberg.net

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