Updated: 12/14/2010 3:30 p.m.
The U.S. Department of Justice said it plans to appeal a ruling by a federal judge in Virginia that a key provision in President Barack Obama’s healthcare reform law is unconstitutional.
Tracy Schmaler, the Deputy Director of the office of public affairs at DOJ said in a statement that it would appeal the ruling in U.S. appeals court because Judge Henry Hudson based his decision on a, “state statute that is not applicable nationwide.”
“The department believes this case should follow the ordinary course of allowing the courts of appeals to hear it first so the issues and arguments can be fully developed before the Supreme Court decides whether to consider it.”
Appealing the decision in U.S. appeals court could forestall a push by Republican opponents of the healthcare reform bill to have the Supreme Court hear the case as soon as possible.
On Monday, Hudson who presides over the U.S. District Court for Eastern Virginia ruled that the Patient Protection and Affordable Care Act’s individual mandate, which would require most Americans to buy health insurance, is unconstitutional because it exceeds the federal government’s power to oversee interstate commerce (known as the "Commerce Clause").
But Hudson also denied a motion by plaintiff Ken Cuccinelli, Virginia’s attorney general, to halt implementation of the healthcare reform act pending the appeals process. The individual mandate is slated to go into effect in 2014.
“Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause power to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market,” Hudson wrote. "Despite the laudable intentions of Congress in enacting a comprehensive and transformative healthcare regime, the legislative process must still operate within constitutional bounds.”
The decision is considered a major setback for what opponents have termed "Obamacare," after a Michigan judge dismissed one legal challenge and a Florida judge allowed a legal challenge to proceed.
The Obama administration also launched a pubic counter offensive after the ruling today. In an op-ed piece published in the Washington Post Attorney General Eric Holder Jr. and Dept. of Health and Human Services Secretary Kathleen Sebelius called the lawsuits challenging the constitutionality of the law “attacks” and “wrong on the law.”
“The legal arguments made against the law gloss over this problem even as opponents have sought to invent new constitutional theories and dig up old ones that were rejected 80 years ago,” they wrote. “It’s not surprising that opponents, having lost in Congress, have taken to the courts. We saw similar challenges to laws that created Social Security and established new civil rights protections. Those challenges ultimately failed, and so will this one.”
Recently, Brett Loper, senior vice president and director of government affairs for AdvaMed told MassDevice that challenges to the laws constitutionality may actually force legislators back to the table.
“Court challenges could have such a dramatic change on the law’s operational capacity that Congress is forced to go back in and deal with the law,” Loper said. “External events could force people back to the table.”
And the battle between the states and the feds could intensify, will potentially 30 states opposing the law outright or — because they’ll be charged with much of its implementation — using their leverage to changes aspects of the bill.
“There is going to be a tug of war between more states and the administration,” Loper said. “That could force the Congress to go back in and look at this.”
