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Nation’s eyes now on FL judge; what will he do?

Senior U.S. District Judge Roger Vinson saved the fireworks until almost the end of a 65-page October ruling that allowed Florida and other states to continue challenging the new federal health law.

"The power that the individual mandate seeks to harness is simply without prior precedent,'' Vinson wrote of the law's controversial requirement that people buy health insurance in the future.

Vinson went on: "The individual mandate applies across the board. People have no choice, and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized.''

The Pensacola-based judge's ruling --- and apparent skepticism of the individual mandate --- gave a boost to Florida Attorney General Bill McCollum and others who have argued for months that Congress overstepped its constitutional power in passing the Patient Protection and Affordable Care Act.
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But from a legal perspective, the order was a preliminary bout --- a decision about whether the case should be dismissed. Tomorrow, it will be time to rumble in the main event.

Attorneys for the Obama administration and the law's opponents will appear in a Pensacola courtroom and seek to convince Vinson to rule in their favor about whether the landmark law is constitutional.

In a way, the hearing has lost some sizzle because a Virginia federal judge drew national attention this week by ruling the individual mandate unconstitutional. But both the Virginia and Pensacola cases are part of a stew of litigation in several states that has already yielded conflicting results and is widely expected to end up in the U.S. Supreme Court.

Congress and President Obama approved the sweeping law in March, and McCollum immediately filed a lawsuit challenging it. In all, governors or attorneys general from 20 states have joined the lawsuit, as have the National Federation of Independent Business and two individuals --- including Panama City businesswoman Mary Brown.

Aside from the legal arguments, the health law is one of the most politically explosive issues in years. Florida Gov.-elect Rick Scott, for example, fought the health law before running for office and kept up his scathing criticism after the Virginia ruling Monday.

"Obamacare is the biggest job killer in the history of this country, and this decision will go a long way toward restoring the certainty businesses need to start hiring and restoring some sanity to the federal government,” Scott said in a statement released by his office.

Meanwhile, groups that support the law are expected to hold press conferences in Pensacola tomorrow to deride what one called the "politically motivated lawsuit.''

"This law guarantees health security for all Americans, bans health plans from denying coverage to children and adults with pre-existing conditions, and prevents people who get sick from being dropped from coverage,'' said Patrick Cannon, advocacy director for Florida CHAIN, a group that works on health issues affecting low-income and uninsured people.

The most-contentious part of the law is what has become known as the individual mandate. It requires almost all Americans to have health insurance as of 2014 or pay financial penalties.

Hundreds of pages of documents filed in the Pensacola case show the starkly different legal arguments that the Obama administration and opponents will make tomorrow. But beneath all the verbiage, Vinson's decision likely will come down to one question: Does the Commerce Clause of the U.S. Constitution allow Congress to impose the individual mandate?

McCollum, who has spearheaded the lawsuit, and other opponents answer the question with a blunt no. Their attorneys, among other things, accuse the federal government of "verbal gymnastics" and engaging in "Orwellian efforts" to justify the individual mandate.

''For more than 200 years, Congress has understood and accepted the fundamental limits on the commerce power,'' the opponents' attorney argue in one document. "Before passage of the (health law), no Congress had ever required individual Americans to buy a particular good or service as a supposed regulation of 'commerce.' ''

But the Obama administration's argument is more nuanced and tries to connect the individual mandate to other parts of the law.

The Commerce Clause gives Congress the power to "regulate commerce ... among the several states.'' Department of Justice lawyers argue that virtually every American is part of the health-care system --- even those who choose not to buy health insurance --- so Congress can use its Commerce Clause powers to require coverage.

"It is difficult to imagine a more directly economic focus of legislation than the regulation of how health-care services are financed,'' the federal lawyers argued in one document. "The minimum-coverage provision thus regulates matters with direct and substantial effects on interstate commerce.''

But the Obama administration also ties the individual mandate to other parts of the law, such as barring insurers from denying coverage to people with pre-existing conditions and barring them from charging more based on a person's prior medical history.

The Department of Justice lawyers argue those other parts of the law would not work without the individual mandate. That is because many people would simply wait to buy coverage until they are sick, creating a financially unsustainable insurance system.

Attorneys for McCollum and the other opponents, however, turn that argument on its head, contending that the other parts of the law are designed to help carry out the individual mandate --- not vice versa.

"They make it possible for those with pre-existing or chronic conditions to secure and maintain the health-care insurance coverage the individual mandate requires,'' one document says.

Regardless of how the different parts of the law work together, however, opponents contend that Vinson should throw out the entire law --- not just the individual mandate.

The Virginia decision this week followed two other court rulings that upheld the law. But while the Virginia ruling focused on the individual mandate, McCollum noted that his case also challenges a Medicaid expansion that is included in the measure.

In arguing against the Medicaid expansion, opponents included statements of health officials from various states, including Elizabeth Dudek, the interim secretary of the Florida Agency for Health Care Administration.

The law requires expanded Medicaid eligibility, with the federal government paying the full cost of the expansion for the first three years and ultimately paying 90 percent in later years. But Dudek said the expansion still could eventually cost Florida about $1 billion a year.

Attorneys for the opponents call the expansion "unlawfully coercive.''

"In effect, Congress has scuttled the existing Medicaid program in favor of a new program that is vastly different and specially designed to facilitate the (law's) goal of near-universal coverage --- a goal wholly distinct from the previous Medicaid objective of helping the needy,'' they wrote in one document.

But the Department of Justice attorneys argue that states do not have to participate in Medicaid. They contended in one document that the opponents' argument "essentially raises political questions that fall outside the province of the judiciary.''

Vinson, who was appointed to the bench by Republican President Ronald Reagan, also appeared skeptical of the opponents' Medicaid arguments when he ruled on the motion to dismiss in October. He wrote that there is "very little support'' legally for the argument that the federal government is coercing states on Medicaid --- but he allowed the issue to remain in the case.

--Capital Bureau Chief Jim Saunders can be reached at 850-228-0963 or by e-mail at