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Appeals court decision opens another chapter in health care saga

Neil Munro White House Correspondent
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The decision by three Democratic-nominated judges to discard two Virginia lawsuits against the president’s signature health care law has offered Democrats a new strategy to defend the increase in regulation of the nation’s health care sector.

The three judges, two of whom were appointed by President Barack Obama, decided that the Virginia’s Republican Attorney General Ken Cuccinelli could not sue against the law because neither his office nor the state were directly impinged.

The judges also decided that individual citizens could not sue against the law until they actually have to pay the taxes that will be levied in 2014 by the controversial law.

Thursday’s decision that citizens must wait until the bill comes due could delay a decision by the Supreme Court until mid-2016, said Walter Dellinger, a Democrat, a former acting U.S. Solicitor General and a board member of the progressive American Constitution Society.

By then, each citizen would have to personally explain their decision not to pay the federal fine for refusing to purchase health insurance, he said. (RELATED: Appeals court shoots down Va. health care challenge)

“That taxpayer would have to answer the question of ‘Who do you think will pay for your health care if there’s a catastrophic illness?’ The answer would have to be that the taxpayers would have to pay” for the individual’s health care, unless the individual had already purchased his or her own federal-regulated insurance, he said.

Many opponents of the law want a quick decision by the Supreme Court. “The health care law is already imposing unsustainable costs on the states and businesses,” said a statement from Karen Harned, executive director of the legal center at the National Federation of Independent Business, which is challenging the law.

Even after the dismissal of the Virginia lawsuits, “26 states and numerous non-state plaintiffs remain in separate suits .. there’s no reason for the Supreme Court to delay its review,” said statement from Ilya Shapiro, at the libertarian Cato Institute.

The federal government has the constitutional authority to regulate health care under the constitution’s interstate commerce clause because health care “is different,” because people have to use it, because it has an impact on the federal government and on other people’s costs and is a large slice of the economy, Dellinger said.

When asked, Dellinger did not explain why that logic could also be used to justify a law allowing the government to regulate people’s diet and their individual security.

Any lawsuit that says the commerce clause bars the the law will also fail because the law does not govern commerce, said Dawn Johnsen, a law professor at Indiana University. The law governs health care services, not traditional commerce, said Johnson, who is also a member of the ACS’ board.

Various courts have decided for and against various aspects of the law, and its constitutionality is widely expected to be decided by the Supreme Court.

By “summarily dismissing [the lawsuits]… I think just helps persuade the [Supreme] Court that it would be even more of an act of judicial activism to find the law unconstitutional,” predicted Neera Tanden, chief operating officer of the Center for American Progress.

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