PENSACOLA, Fla, Sept. 14, 2010……….The lawsuit challenging the federal health care law enacted this spring is likely to proceed after a federal judge in Pensacola said Tuesday that he was leaning toward letting at least some of the claims by several states against the administration continue.

After asking pointed questions of lawyers for the U.S. Department of Justice, and attorneys representing Florida and 18 other states, U.S. District Judge Roger Vinson said he would probably agree with the federal government on some claims and dismiss part of the suit, but let parts of it proceed.

Vinson did not suggest which parts of the claims against the Obama administration were likely to survive, meaning the contours of the case will not be clear until he issues his formal ruling Oct. 14. He did, however, set a schedule for future briefs and hearings, which included Dec. 16 oral arguments on a motion to find the health care law unconstitutional that attorneys for the state plan to file.

That was enough for Florida Attorney General Bill McCollum, who filed the legal challenge a day after President Barack Obama signed the health care law in March, to say Tuesday he was optimistic the case would go forward.

“I think we’ll be in standing at the end of the day for the case,” he told the News Service of Florida. “Obviously how he rules on all of this is very important to us. We certainly want to be there with the individual mandate; we want to be there with our claims for the states that we’re concerned about, the overload of Medicaid and so forth and state sovereignty.”

The National Federation of Independent Businesses, a co-plaintiff in the case, was hopeful Vinson would side with them on standing too.

“We are very encouraged,” said Karen Harned, NFIB executive director. “We felt that the constitution was really the star of the show today during arguments and we feel we’ve got that on our side.”

The DOJ argued that Tuesday should have been the end of the line for the lawsuit because the states, NFIB and two Florida residents couldn’t challenge the legality of the health care law because they would not be affected by it until 2014, when the law is scheduled to be implemented.

The states countered that the law violates the Commerce Clause of the U.S. Constitution by requiring residents to purchase insurance, and that the requirement that states expand their Medicaid rolls violates the states’ rights guaranteed in the 10th Amendment.

Vinson questioned both sides, but appeared to be more sympathetic to arguments put forth by the states.

“This really puts all 50 states on the short end of the stick, because all the federal government has to say is ‘we’re going to give you some money, and you’re going to have to do this,'” Vinson said. “And for something such as health care, which (is) essential, the states are left powerless. Is that where we are?”

Vinson pointed out that Congress and President Obama maintained during debates in Congress that the health care bill would not raise taxes, but the Justice Department was arguing in court Tuesday that the bill could not be challenged because the federal government had the authority to levy taxes.

“I’ve given this a lot of thought,” Vinson said. “We had the Whiskey Rebellion because people rebelled against having to pay taxes for the whiskey that they made. The government never made people buy whiskey.”

Deputy U.S. Assistant Attorney General Ian Heath Gershengorn replied that Congress had determined that everyone was going to buy medical services at some point in their lives, whether or not they wanted to buy insurance.

“Congress found that there are separate markets here, one for medical services, one for health care.” “Individuals cannot keep themselves (out of the medical services market) because they cannot control when they might get hit by a bus,” he said. “And when that happens, the individual gets care because we do not allow individuals to die on the floor of the emergency room.”

The mandate is allowed, the government argues because of the billions of dollars a year in unpaid medical bills absorbed by the market each year.

David Rivkin, Jr., a Washington, D.C. lawyer who worked in the administrations of Presidents Reagan and George H.W. Bush, and is representing the states in this case, disagreed.

“Cost shifting is not unique to health care,” he said. “It permeates every aspect of our market economy. Unfortunately, millions of Americans default on their credit card payments…millions of Americans fall into personal bankruptcy. What happens in those cases? The costs are shifted to other participants in the market.”

Despite Vinson’s pointed questioning, Gershengorn said he was confident legal precedent was on Washington’s side in the case.

“The states (are) free to disagree with policy judgments Congress has made,” he said as he wrapped up his argument. “They are not free to overturn 70 years of Constitutional law.”

But Blaine Winship, special counsel in the Florida AG’s office, argued that the court should weigh in on the health care law because it was so controversial.

“I concede we don’t have cases” where the states’ claim that they should be able to challenge the law on behalf of their residents, who were dual citizens of the state they live in and the country, Winship told Vinson. “We’re simply pointing out that if there ever was a case where (that) could apply, this is it.”

Joining Florida in the lawsuit are Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington.



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