Monday, January 31, 2011
I suspect that many of you view the district court opinions alternatively upholding or striking down the Affordable Care Act to be similar to the hockey season; of only passing interest until the playoffs begin in the Supreme Court in a couple of years. However, the regular season games continue to be played, albeit without too many surprises. Today, the cumulative score reached 2-2 with Judge Roger Vinson's ruling in Florida v. HHS, No. 10-91 (N.D. Fla., Jan. 31, 2011) (available here) striking down the individual mandate (and in the absence of a severability clause, everything else).
Arguably, the stakes were a little higher in this latest case, with the plaintiffs including the governors of twenty-six states. Certainly the volume of words has increased with the latest opinion clocking in at 78 pages. And, in between deference to Hamilton and Madison some of those words do give one pause; for example the Judge's statement "At a time when there is virtually unanimous agreement that health care reform is needed in this country, it is hard to invalidate and strike down a statute titled 'The Patient Protection and Affordable Care Act.'"
If you are of a mind to wait for the playoffs but want to expose your students to the issues I recommend a couple of pieces; our friends from BU have published the pithily titled "Can Congress Make You Buy Broccoli? And Why That’s a Hard Question" in the New England Journal and Mark Hall recently posted "Commerce Clause Challenges to Health Care Reform" on SSRN. Nic Terry.