Despite dismissive comments from state and national Democrats, Florida's lawsuit against the federal government's health-care law is getting traction in court.
U.S. District Judge Roger Vinson this week appeared more than willing to explore the constitutional issues raised by Florida Attorney General Bill McCollum.
Joined by 19 other state attorneys general, the National Federation of Independent Businesses and two Florida residents, McCollum's legal team, headed by constitutional lawyer David Rivkin Jr., argued that Washington trampled on individual and state's rights with its national health insurance mandate.
Judge Vinson, appointed to the bench by President Ronald Reagan in 1983, asked pointed questions of both sides, but appeared disinclined to grant the federal government's motion to dismiss the case.
"He will let the case move forward to some degree," said Ben Gordon, who clerked for Judge Vinson from 2000-2002. "He will bring a level of pragmatism and narrow the case down to the core issues."
House Speaker Nancy Pelosi has said the dispute is "not a serious question" and Democratic attorney general candidate Dan Gelber said this week he would not pursue the legal fight if he is elected in November.
Both Democrats suggested that contesting the federal law is simply politics -- though Gelber had hedged on the issue until making his announcement this week.
Gordon said Vinson, a senior judge in the Northern District of Florida, is no ideologue, and would not entertain a case on political grounds. Nor is Vinson the kind of judge to use the case as a "soapbox," Gordon related.
"Philosophically, he's never tried to apply an agenda. He has a sense of individual rights, and he's cued in on state's rights," Gordon told Sunshine State News from his law office in Fort Walton Beach.
That attention to individual and state's rights bodes ill for federal lawyers who argue that the Constitution's commerce clause and taxing power allow Washington to act.
Vinson, however, had a historical rebuttal to the contention that Washington could require Americans to purchase health insurance.
Ive 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.
Gordon said that comment reflected Vinson's critical "focus on the individual mandate."
Gordon said the key question at this point is not whether Vinson will let the case move forward, but who will be allowed standing. Gordon, who specializes in business law, said the states and the individuals in the case appear to be on solid ground as plaintiffs, but he wasn't sure about the business groups.
"The Medicaid impact may also be difficult to claim," he added. In court, Vinson agreed with federal lawyers that states could drop out of that 45-year-old government program if they were unhappy with it.
But even with that comment, Vinson evinced a degree of skepticism about the constitutionality of expanding the national government's role in health care.
"It sounds like (the lawsuit) will be granted in part and denied in part," Gordon concluded.
Vinson announced this week that he will rule on the federal government's motion to dismiss on Oct. 14. By setting a schedule for future briefs and hearings, and a Dec. 16 date for oral arguments, the judge is "really moving this case (forward)," Gordon said.
"He'll boil it down to the essentials," Gordon noted, and, in so doing, Judge Vinson appears ready to turn up the heat on the federal government.
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Contact Kenric Ward at kward@sunshinestatenews.com or (772) 801-5341.
