The states argued that Mary Brown and Kaj Ahlburg don’t have insurance and don’t intend to buy it in 2004. Therefore their probability of harm is certain at a fixed point in the future. Furthermore Brown is a member of the NFIB, National Federation of Independent Business, which has incurred costs educating its members on ACA. Judge Vinson challenged whether this was a cost the NFIB would have incurred otherwise.
The attorneys also argued that its unrealistic to think the states would pull out of Medicaid and that the states will have to spend millions to prepare for the expansion…although they had no estimates to give the court. They argued the states could ‘piggyback” on the rights of Brown & Ahlburg and NFIB to have standing.
They also argued that Congress has only limited and enumerated powers. The states have general police powers. The ACA represents as “fundamental transformation of our Constitutional system.” They stated that it would mean there is no limit to federal powers.
“There is no type of commerce that doesn’t involve activity,” said attorney David Rivkin. “Congress has never tried to use the Commerce Clause to compel inactive Americans to purchase a good or service.”
He argued that lack of insurance is not an economic activity. He attacked the notion of cost shifting that happens in healthcare with the insured having to pay for uninsure. He point the cost shifts due to people defaulting on credit cards, bankruptcies and subprime mortgages.
“There is nothing unique to insurance. People need bread and milk, but we can’t require them to buy them.”
Ritkin also argued that the regulating of inactivity is giving the federal government police powers and “eviscerates” states’ sovereignty. The federal government can not mandate one private individual must purchase something from another private individual. It was also argued that by requiring parents to cover their children through age 26, it was an “unprecedented intrusion into family life.”
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Vinson said he would formally rule on the dismissal motion by October 14. It is expected that while he might dismiss some of the counts (as per Time Magazine), Vinson will hold hearing on the case on December 16.
