February 1, 2011 | No Comments
Posted by Frank Ciesla
This week’s headlines announced that a Federal Judge in Florida struck down the healthcare law as unconstitutional. However, until the constitutionality issue is finally resolved by the U.S. Supreme Court, the federal government and most (if not all), state agencies will continue to proceed with the implementation of the statute. As stated in an earlier blog post, PPACA will require at least one thousand regulations to be drafted in order to implement the statute. In addition, the federal government continues to issue waivers from certain statutory requirements to states, corporations and labor unions. Over 200 waivers have been issued to date.
The federal government has decided not to seek immediate review by the United States Supreme Court. This fact is somewhat surprising, since there are now four lower federal court decisions which have reviewed the statute: two upholding the constitutionality of the statute; one determining that the entire statute is unconstitutional; and one determining that a portion of the statute is unconstitutional.
As to the Florida decision determining the entire statute to be unconstitutional, it is interesting to note two points, contrary to what appears to be some of the “spin” on the various cable channels. The first point is that the statute does not contain a severability clause, which appears to have been intentionally omitted when the statute was enacted. Second, the United States Justice Department, in arguing in favor of upholding the constitutionality of the statute, has argued that the statute cannot succeed without the “insurance mandate.” These factors caused the Florida judge to state in his recent decision that the statute is a “fine tune timepiece that needs to be re-engineered by its authors.”
It is clear that we will be seeing arguments in at least three different federal circuit courts as of this point in time, which should result in appellate court decisions before the end of 2011. One would expect these decisions would then be appealed via the filing of a petition for certiorari with the United States Supreme Court. The Supreme Court’s decision would most likely be issued in the spring or early summer of 2012, just before the next presidential election.
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