Michael D. Bellow may seem like an unlikely person to take the Obama Administration to court over the new health care law, which says that by 2014, most Americans must have health insurance. Unless his life changes dramatically, the 26-year-old prison guard won't even be subject to the so-called individual mandate, which has rankled conservatives across the country. As a member of the Texas Army National Guard, Bellow is enrolled in Tricare, the government-sponsored health-insurance program for the military.
But that's beside the point, says Bellow, who filed a lawsuit in March 2010 as a private citizen. Active in local Republican politics in Texas, Bellow has no lawyer and paid the $350 court filing fee for his lawsuit out of his own pocket. Regardless of his personal coverage, Bellow says, he felt compelled to sue because he believes the Patient Protection and Affordable Care Act (ACA) is unconstitutional. "There are a lot of things our Representatives can do, but sometimes you just gotta stand up and do things for yourself," he says. In addition to challenging the legality of the individual mandate, Bellow's suit claims that the law will unlawfully allow the government to examine his personal health records.
Bellow's relatively quiet case is one of more than 20 challenges to the law that are making their way through federal courtrooms across the country; several are getting far more attention than others. Back in December, Virginia Attorney General Ken Cuccinelli notched the first district court victory in the battle to overturn the law. And on March 3, a federal judge in Florida overseeing a joint challenge from more than 20 states said his similar finding that parts of the law are unconstitutional should halt implementation of the law altogether. The Department of Justice (DOJ) is appealing the rulings, both of which the judges have stayed for the time being.
Even if it's not making headlines, Bellow's suit and others like it are being taken seriously by the DOJ. "As it traditionally does when statutes passed by Congress are challenged in court, the department is devoting resources to defend the ACA against constitutional and other challenges," says DOJ spokeswoman Tracy Schmaler. "We have a strong team of about a dozen attorneys and paralegals from the civil division and across the department."
Although federal district judges have already dismissed or ruled against some plaintiffs, many are appealing in a long march toward the Supreme Court, which is expected to ultimately decide the fate of the law. In Arizona, a small-business owner has linked up with several members of Congress and more than 20 state legislators to file a suit claiming that the law tramples the First Amendment and is an invasion of privacy. Plaintiffs in a case in Washington, D.C., claim that the law infringes on their religious freedom. Several plaintiffs elsewhere say the law may illegally allow federal funding for abortion.
In January, Oklahoma Attorney General Scott Pruitt filed a suit similar to the multistate challenges in Florida and Virginia, saying the law's individual mandate is a federal overreach. Why bother pursuing a challenge that's sure to lag behind others that were filed earlier? "In constitutional litigation, most experts would agree that it's good to get multiple circuits involved," says Pruitt. The more appeals courts that uphold district court rulings against the law or overturn district rulings upholding the law the stronger case plaintiffs will have when it is heard by the Supreme Court.
Each case also gives challengers to the law another opportunity to sharpen their arguments. And there is some competition among plaintiffs, many of whom are vying to have the first suit to land before the high court. "I'm sure there are a few folks out there who are doing their very best to rush headlong into the Supreme Court," says Chris McDaniel, a Mississippi state senator who is leading an ACA lawsuit filed on behalf of Lieut. Governor Phil Bryant. "It's just a matter of who gets up there with the best set of facts."
Partisanship also plays a significant role in the process. The Fourth Circuit, for instance, where the appeal to Cuccinelli's suit in Virginia will be heard, is believed by some to have tilted leftward with the recent judicial appointments by President Obama. The 11th Circuit, where the Florida case will be appealed, is widely believed to be more conservative.
"Every case you file, the first question you ask is, Who's the judge?" says McDaniel. "I wish you could say justice is blind, but these appointments took place for a reason."
The same goes for the Supreme Court, generally considered to comprise four conservative Justices, four liberal Justices and one swing vote. How the case will be decided, however, is still very much a mystery. So far, three district judges appointed by Bill Clinton have ruled that the law is constitutional; two district judges one appointed by Ronald Reagan and the other by George W. Bush have determined the opposite. As Roger Vinson, a Florida district judge who ruled that the law is unconstitutional, said in his March 3 decision, "The sooner this issue is finally decided by the Supreme Court, the better off the entire nation will be ... I cannot say that the defendants do not have a likelihood of success on appeal. They do. And so do the plaintiffs."