Somin Comments in Washington Post on Health Care Repeal Efforts

A second court ruling this week holding that Congress cannot force individuals to buy health insurance drives home the reality that challenges to the nation's health care law are to be taken seriously says Professor Ilya Somin, commenting in The Washington Post.

"Certainly, it's becoming more and more clear that there's a real legal issue here, as compared to a year ago," says Somin, "when people said this was just frivolous and had no chance of succeeding."

In two recent challenges, the health care law has been upheld in federal court, but in two others, judges have ruled against it. Currently there are 20 additional pending suits. 

The legal issue is expected to make its way through midlevel appeals courts before reaching the Supreme Court, where the potential exists for the high court to strike down all or part of the law, possibly by spring of 2012. If the case is heard by the Supreme Court, all eyes will be on Associate Justice Anthony Kennedy, who frequently casts a swing vote on issues before the court.

Senate rejects repeal of health-care law as fight shifts to courts, The Washington Post, February 3, 2011. By David A. Fahrenthold and N.C. Aizenman.

"Legal scholars' view of the effort, once widely dismissed as a quixotic political tactic, has already undergone a sea change. The first ruling overturning the law, by U.S. District Judge Henry E. Hudson of Virginia in December, was the catalyst, said Randy Barnett, a Georgetown law professor who has filed briefs opposing the law.

"'There's no logical reason why one judge's opinion should have that much effect, but it really did,' he said. 'It was like getting hit over the head with a two-by-four. Suddenly they had to take these arguments seriously.'

And Monday's decision by U.S. District Judge Roger Vinson in Florida - which at 78 pages is nearly twice as long as Hudson's - cemented that impression.

"'They can no longer dismiss Hudson's ruling as a one-off,' Barnett said, 'and the breadth and depth of Judge Vinson's opinion is very impressive.'

"If law professors still differ on the possible outcome, there is now a consensus that the lawsuits are teeing up a seminal showdown in the Supreme Court over the scope of congressional power under two of the Constitution's most far-reaching provisions: the commerce clause and the necessary and proper clause."

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