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PPACA: Another Judge Eyes Mandate

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A federal judge in Pensacola, Fla., seems to have questions about whether the Affordable Care Act individual health coverage ownership mandate is constitutional.

U.S. District Judge Roger Vinson asked during oral arguments Thursday whether Congress could use the same rationale to require citizens to eat broccoli that it wants to use to make some taxpayers have health insurance, according to press reports.

The Obama administration officials defending the mandate say the commerce clause, a part of the U.S. Constitution, gives the federal government the right to regulate economic activity that has health reform casean interstate impact; Vinson asked whether inactivity – a failure to buy health coverage – is the kind of activity that the government can regulate.

In Richmond, Va., another federal judge, U.S. District Judge Henry Hudson, ruled Monday that Congress exceeded its constitutional authority when it included the individual coverage ownership mandate in the Affordable Care Act, the legislative package that includes the Patient Protection and Affordable Care Act (PPACA).

“Minimum Essential Coverage Provision,” would require many people with incomes above a certain level to buy a minimum level of health coverage starting in 2014 or else pay a penalty.

The provision provides for exceptions for individuals with religious objections to owning health coverage and individuals who cannot find affordable health coverage.

Supporters of the provision, including America’s Health Insurance Plans, Washington, have

argued that any universal health coverage system must include a health coverage ownership mandate, to discourage individuals from paying for coverage only when they are sick.

Otherwise, young, healthy consumers might do without coverage and count on society to provide free care when they do suffer from serious illnesses or injuries, provision supporters say.

Federal courts in Michigan and Lynchburg, Va., have sided with the provision supporters.

Peter Marathas Jr., a health care lawyer in the Boston office of Proskauer Rose L.L.P., says in a written commentary that the Supreme Court may have to rule on whether “inactivity” is a kind of “activity,” and whether the government has the same ability to regulate inactivity that it has to regulate activity.

“A solid line of commerce clause cases have found that Congress can regulate activity by private citizens even when they are not engaged in any kind of commerce, under the commerce clause,” Marathas says.

Like Vinson, Hudson has drawn a distinction between activity and inactivity.

Hudson “found the federal government’s argument to be less than persuasive,” Marathas says. “If accepted, the commerce clause would have no limits, because any decision not to do something is then construed as a decision to do something.”


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