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Nevada’s challenge to health care law could see ruling by January but appeal certain


By Sean Whaley, Nevada News Bureau: The private attorney working on Nevada’s challenge to the new national health care law says a federal judge in Florida should rule on the case by January, setting the stage for an appeal that ultimately is expected to reach the U.S. Supreme Court.

U.S. District Judge Roger Vinson gave Nevada and 19 other states a victory in October when he rejected the federal government’s efforts to get the lawsuit thrown out of court.

“I think by mid-January we will have a decision out of Judge Vinson,” said Las Vegas attorney Mark Hutchison, representing Nevada without charge in its challenge to the constitutionality of the Patient Protection and Affordable Care Act.

Vinson is now scheduled to hear arguments on Dec. 16 on two major legal issues: whether Congress can mandate individuals to purchase insurance coverage, and whether the law oversteps the federal government’s authority to tell states how to run their budgets by mandating an expansion of the Medicaid caseload.

The mandate by Congress to individuals to purchase insurance is a key element of the legal challenge, Hutchison said.

“He (Vinson) will decide whether or not, through the commerce clause, Congress can essentially regulate inactivity; that is, my decision or your decision not to purchase insurance,” Hutchison said.

The other issue is whether the mandate that states expand Medicaid coverage under the new law violates the 10th Amendment giving states authority over their own budgets and programs.

The mandate by the federal government is putting tremendous financial burdens on the state, he said.

Gov. Jim Gibbons has estimated the Medicaid mandate will cost Nevada $613 million over six years beginning in 2014 when a three-year federal payment to cover the cost of an increased Medicaid caseload goes away.

While the lawsuit remains active, Hutchison said actions by the next Congress could potentially make the legal challenge moot.

The Democratic majority in the House of Representatives was swept away on Tuesday, and the new Republican majority has made repealing the health care law a top priority.

A repeal of the law would make the challenge moot, Hutchison said. If, in the alternative, Congress refuses to fund the implementation of the law, that too could sideline the challenge, he said. The argument could be made that the states would not have standing to challenge the law because it is not being put into effect, he said.

In his October ruling allowing the case to proceed, Hutchison said Vinson gave some hints about how he may rule. Vinson noted the Congressional mandate is unprecedented, saying in a footnote in his ruling there have been at least six attempts by Congress to implement universal health care in the past 90 years but that this is the first effort at a mandate.

Vinson said there may be a presumption that the mandate under the commerce clause is unconstitutional because it has never been used before despite claims by the U.S. Justice Department that Congress has the authority to do so.

“While the novel and unprecedented nature of the individual mandate does not automatically render it unconstitutional, there is perhaps a presumption that it is,” Vinson said in footnote 21.

“So I think that gives us a clue,” Hutchison said.

The ruling is also interesting in that it rejects an alternative effort by the federal government to justify the mandate under its taxing authority, Hutchison said. The penalty for not purchasing health insurance has always been defined as a penalty, not a tax, he said.

In his ruling, Vinson said: “Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an ‘Alice-in-Wonderland’ tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.”

The opposing motions for summary judgment that will be filed by the states and the U.S. Department of Justice will both say there is no need for a trial, only a ruling on the merits of the case.

Whichever way Vinson rules, the case will be appealed to the 11th Circuit Court of Appeals and ultimately to the U.S. Supreme Court, Hutchison said

Other challenges, by states and individuals, are proceeding in other jurisdictions. The challenge by Nevada and the other states also includes the National Federation of Independent Business and two individuals.

Hutchison agreed to represent Nevada in the case after Democratic Attorney General Catherine Cortez Masto declined to file suit on behalf of the state. The election of GOP candidate Brian Sandoval as Nevada’s next governor ensures the challenge on behalf of the state will continue.

“He (Sandoval) welcomes with open arms the state’s continuing involvement in this litigation,” Hutchison said.

Hutchison said Masto’s argument for declining to challenge the law – that it was frivolous – has been repudiated by Vinson’s ruling allowing the case to proceed.

He called Masto’s decision, “a poor exercise of professional judgment.”

“Now Nevada is one state that is right in the hunt on a very important issue that is going to be proceeding up the process ultimately to the U.S. Supreme Court,” Hutchison said.

Asked for a response, Masto said: “It sounds like Mr. Hutchinson is still trying to justify his involvement in this case. I can understand his concerns considering that two separate federal courts have already dismissed similar actions against the health care law and the judge in the Florida action has dismissed four of the six claims and will make a decision on the remaining claims sometime in December.”

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