By Jane Perkins, National Health Law Project

This past Monday, Florida district judge Roger Vinson issued his decision in one of the most closely watched cases challenging the constitutionality of the Affordable Care Act (ACA).  At least 24 such cases have been filed in federal district courts around the country.  The Florida case is different from all others because of the large number of plaintiffs–which include elected officials from 26 states (Judge Vinson allowed six newly elected officials into the case in January).  The decision has four major elements:

1. Judge Vinson holds the individual responsibility requirement (to have minimum insurance coverage) unconstitutional because the Commerce power does not allow Congress to regulate economic “non-activity” – i.e, the choice not to buy health insurance.  He says the requirement could result in the government requiring us to buy broccoli.  This ruling (including the broccoli reference) was not surprising based on his earlier statements and questioning throughout the case.  This decision matches the Virginia case involving Judge Henry Hudson, but stands in contrast to two other Federal Court decisions (now on appeal to the 4th and 6th circuit courts of appeal).

2. By contrast, Judge Vinson rejected the state officials’ arguments that the ACA’s Medicaid expansion was unconstitutional because the states were being coerced to participate.  This was excellent news and was somewhat foreshadowed by some of the Judge’s statements in the past months. 

3. Judge Vinson decided, in contrast to even the prior Virginia decision and reasonable expectations, that the individual mandate could not be separated from the rest of the ACA, legally speaking the provision was not severable and, because that part was unconstitutional, the entire ACA was void.

4. Judge Vinson only declared the provision was unconstitutional.  He denied a request to enjoin further ACA implementation.  He indicated that he was opting not to rule for the injunction because his declaration that the ACA is unconstitutional should be sufficient to bar any Federal official from implementing the law.

The most surprising aspect of the decision concerns the ruling on severability.  The individual responsibility requirement is not in effect and it won’t be until 2014.  Moreover, the Judge’s order is not a model of clarity, and it is not certain whether the declaratory relief is actually intended to stop all federal implementation efforts.  To avoid the risk of being seen as noncompliant with a judicial order, the Federal government may well seek to stay this aspect of the decision.  Pursuant to Federal rules of procedure, the ordinary course is for the request to be made first to the district court (before asking the court of appeals).  While it may seem counterintuitive, district courts will sometimes stay their own rulings where, as here, complex or sensitive matters are being raised.   At any rate, the hope is that, if requested, a stay would issue promptly, thus clarifying that implementation can continue while the case is appealed.  Barring a request for expedited review being made to and granted by the Supreme Court, the case would be heard by the Eleventh Circuit Court of Appeals and then the Supreme Court if it has not already accepted one of the other cases already making their way through the courts of appeal.

Meanwhile, the severability ruling is causing a lot of confusion. Until the situation is clarified, the following question will be asked:  Should the state continue implementing health reform in light of the Florida decision.  Here are five reasons to say, “Yes.”  (For five more reasons, go to our website):     

1. The decision is being used to stir up confusion.  Let’s not add to that confusion by changing the status quo away from the careful path of review and implementation that is underway.  

2. The judge did not rule against any state.  His ruling only applies to the federal government.  States can and should continue what they are doing:  carefully paving the way for health reform in 2014–activity that is and will be matched by significant federal matching funds.    

3. Judge Vinson is only one judge and this is one decision.  So far, at least six federal district courts have dismissed cases that sought to have the ACA declared unconstitutional.  Two courts have found the ACA individual responsibility mandate to be constitutional, and two have found it unconstitutional. 

4. Judge Vinson is at odds with the only other decision holding the ACA individual responsibility provision to be unconstitutional.  Virginia Federal District Judge Hudson declared the provision to be unconstitutional but easily found it to be severable from the remainder of the ACA.  As he noted, the provision is not to be implemented until 2014.

5. Judge Vinson began his own analysis with the following observation:  “Severability is a doctrine of judicial restraint.”  Opinion at 64.  The remainder of the opinion should be looked at with skepticism because he did not exercise restraint.