Commercial Activity vs Inactivity Is at Center of Judges' PPACA Rulings

Weighing in with lightening speed in the NEJM,* legal scholar Mark Hall calls Judge Vinson's recent ruling on PPACA "far and away the most prominent decision issued to date in this ongoing litigation." The reason for the ruling's prominence, at least in part, is because the suit involved 26 plaintiff states, Hall argues. I would also propose that Vinson's ruling, despite gutting PPACA and leaving healthcare reformists at square one, is notable for its even-handedness and understandability.

Nevertheless, Hall reminds us: Florida et al vs HHS et al "is only one of about two dozen legal challenges across the country." Of the 4 suits in which federal decisions have been rendered so far,** the judgments are split: two in favor of PPACA (in Detroit and Lynchburg, VA); and two against (in Richmond, VA, by Judge Hudson, and in Pensacola, FL, by Vinson). Hall says that the judges' decisions are consistent with the party of the President who appointed them.

The unifying crux of the rulings is whether the judges buy into the notion that commercial inactivity (ie, not buying insurance) actually constitutes activity. What is being uniformly rejected, however, by the 4 judges is the government's argument that the penalty on an individual for not buying insurance is, in effect, a tax—an argument proposed by Yale law professor Jack Belkin as a slam-dunk for the constitutionality of PPACA. It appears Vinson and the other ruling judges are placing heavy weight on the PPACA wording of "penalty" (as opposed to "tax"), to Belkin's likely chagrin.

The next round of appeals in these cases, as they wend their inexorable way to the Supreme Court, will begin in the Fourth and Sixth Circuits (overseeing the Lynchburg and Detroit cases, respectively). An appeal in Florida et al v HHS et al goes to the Eleventh Circuit. Hall predicts that the Supremes won't consider one of these cases until next year, or even 2013—the year before the legislated insurance mandate is to begin. "Meanwhile," Hall writes, "the work of implementing the [PP]ACA proceeds apace.

* At least in terms of medical-publication speed.

** Hall says that, of the remaining suits, the majority have been tossed on the basis of procedural grounds, and the rest are pending.