Health Care Legal Challenges: What's Next?

Feb. 3, 2010 — -- Virginia's Attorney General saidd Thursday he will officially ask the Supreme Court to expedite its review of the new health care law.

In the aftermath of U.S. District Court Judge Roger Vinson's ruling Monday to strike down the entire Affordable Care Act, there are questions about whether the law should continue to be implemented in any of the 26 states that were parties to the lawsuit.

The issue has constitutional scholars scratching their heads because, while the judge chose not to issue an injunction forcing the federal government to stop implementation, he wrote that his opinion was the "functional equivalent" of such an order.

The Obama administration argues that because the judge did not enjoin the law, it remains the law of the land for all states.

"The decision issued on Monday is one district court decision, and we believe it to be very wrong," wrote Deputy Senior Advisor Stephanie Cutter in a blog posted on the White House's website. "Implementation will continue."

But officials in some states that are a party to the lawsuit disagree.

"We are continuing to evaluate the order," said a spokeswoman for Florida Attorney General Pam Bondi. "The judge clearly stated that the declaratory relief is tantamount to an injunction. This should be respected by the federal government."

Wisconsin Attorney General J. B. Van Hollen told the St. Petersburg Times, "For Wisconsin, the federal health care law is dead -- unless and until it is revived by an appellate court. Effectively, Wisconsin was relieved of any obligations or duties that were created under terms of the federal health care law. What that means in a practical sense is a discussion I'll have in confidence with Gov. [Scott] Walker, as the state's counsel."

David Rivkin, an attorney representing the states said, "Judge Vinson's decision means that, until and unless the Department of Justice is able to obtain the stay of the decision in the 11th Circuit, the law does not apply to the parties in the case, including the 26 states."

Critics of the ruling say it not only is wrong, but has sent a confusing message regarding the law's implementation.

"The judge's decision is confusing with respect to relief," said Andrew Koppelman, a professor of law at Northwestern University School of Law. "We might be able to parse this out if he had issued an injunction, but he hasn't done that. This, like many parts of the ruling, is a fog."

Tim Jost of Washington and Lee University said that if the judge meant to suspend implementation it's unclear which provisions of the law he was targeting and how many states would be affected.

"He's trying to tell the federal government, 'You have to do what I say,' but he failed to enjoin the law," Jost said. "At this point, the official opinion of the federal government should be that it's still the law of the land until a judge enters an order that can be stayed."

Meanwhile, attention is turning to the appellate courts that will be the next judges to rule on the constitutionality of the law.

Sen. Bill Nelson, D-Fla., introduced legislation on Wednesday asking the Supreme Court to take up the issue immediately.

However, the high court is unlikely to get involved until the cases have made their way through the appellate courts.

So far the score in district courts is 2-2. Two judges ruled in favor of the law, and two struck down its core provision.

Appellate courts in Richmond, Va., Atlanta and Cincinnati are scheduled to begin hearing the case this spring.