This week has been busy on multiple fronts with efforts to overturn the health care reform enacted last year.

On Monday, a federal judge in Pensacola, Florida ruled that the entire law was unconstitutional because the individual mandate it contains to buy health care coverage failed to pass constitutional muster, and it was impossible to sever the applicable provisions from the whole.

In that ruling he joined a colleague in Virginia who in December ruled the mandate itself unconstitutional, but upheld the rest of the law. However, the Fla. decision  did include language that Congress indeed has the power to regulate health care but, again, the judge had to void the entire law because he could not see how that mandate could be separated from the whole.

I am emphasizing that aspect of the ruling for a very good reason. It is well-established in the history of decisions by the Supreme Court of the United States (hereinafter SCOTUS) that when the constitutionality of any law is challenged, if only parts of that law are deemed in violation,  invalidating only those parts will be the remedy if the balance of the law can stand on its own.

In that manner they are utilizing judicial restraint which itself is a hallmark of judicial review. Courts want to limit the application of their rulings whenever possible. There are many nuances to this principle as well as notable exceptions, but one should always begin with these presumptions.

There was also a ruling in federal court in Michigan last October upholding the entirety of the law. Since there are conflicting decisions in different jurisdictions, it is very likely that the losing party in each case will appeal the ruling and eventually such appeals will reach SCOTUS.

Until then, the ruling in each of these cases will be the settled law in that federal judicial district only, until overruled or confirmed by the Circuit Court of Appeals which includes that district. Then the Appeals Court decision will be controlling only within that Circuit, of which there are eleven in the United States.

(Fla. is in the 11th Circuit, Michigan the 6th, Va. and W.Va. the 4th and Pa. the 3rd)

Naturally this latest ruling has brought a slew of comment by legal minds great and small as to its meaning. The Wall Street Journal has presented a collection of such.

Curiously, at least to me, none of these lawyers addressed the language from the Fla. ruling that, while dictum, indicates that a health care law without that individual mandate or some other constitutional flaw could very well have been upheld.

Subsequent to the December Va. decision this commentary appeared on The writer does not believe that ruling will be sustained through appeals and explains why with an example of a recent case before SCOTUS involving the growing of marijuana for personal use.

Here is a report concerning the Michigan ruling upholding the law.

Now I have an initial problem with the fact that a number of states’ Attorneys General took it upon themselves to file suit or join litigation seeking to overturn the law. They are invariably conservatives although some much more so than the others.

It has been a constant political point among conservatives since the 1968 Presidential campaign of Richard Nixon to decry so-called activist judges. They believe that these judges have substituted their own judgment in rendering decisions that these conservatives felt were completely outside of the purview of permissible judicial review. Further they accused these judges of, in effect, creating their own legislation with these rulings, rather than wait for the actual legislature, Congress, to address the pertinent issues.

That they have now undertaken to lead a frontal assault on the health care law after they lost a bitter legislative battle, is rank hypocrisy and flies in the face of all they have argued for over forty years. But, then again, so did the legal maneuverings that put the results of the 2000 presidential election in the hands of SCOTUS.

That is my editorial position.

However, besides what I have outlined above, I see two potential additional problems with the actual process of litigation.

Number one is that their arguments have been focused on the individual mandate to purchase coverage. I have examined neither the pleadings nor supporting evidence of briefs to know precisely what their arguments are. But I will say this.

The individual mandate essentially applies to and affects only individuals, not the Attorneys general or other entitities who may have joined in the litigation. To my knowledge no actual individuals who might be subject to this mandate are named plaintiffs. Thus I could see opposition to the litigation invoking the matter of “Standing”

Standing is the basic principle that one filing suit have a legal interest in the matter at issue to be able to engage in the litigation. A greatly oversimplified example would be something like this:

In a neighborhood there is a house on a lot with a number of trees. Those trees are old and not well-maintained and large limbs and branches are constantly decaying and falling into the next door neighbor’s yard. But another neighbor sues claiming that those falling branches are a nuisance. However, that neighbor has not been damaged by the nuisance, if it exists at all, so has no standing to bring suit.

Thus in the health care suit, the suing parties are not subject to the mandate and have no standing in court to object.

Another principle governing whether courts will even agree to determine litigation brought before them is “Ripeness”. That doctrine means, again in simplified terms, that damage done to a litigant creating a cause of action is not “Ripe” for judicial action based on speculative damage unless certain conditions precedent are met.

For instance, a union member may be fired from his job due to the claim of his employer that he violated certain conditions of employment. But the union has a contract with the employer with well-defined rules of due process that list the steps necessary  to fire the employee if indeed an infraction has occurred. And then that same contract provides for definite procedures that the employee must take to appeal that ruling. Unless and until he has taken those steps, he cannot involve the courts.

Likewise in litigation not related to administrative remedies there must be an actual issue in controversy for courts to intervene. Since the individual mandate does not go into effect until 2014, I believe an argument is available that the issue will not be ripe until that part of the law is effective.

Now mind you that, other than my brief editorializing, I am merely presenting an overview of some legal technicalities that may be determining factors in further litigation on the health care law. This by no means is all inclusive. But if you hear language and principles applied such as I have outlined, then you can always say you heard it here first.

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