Two NJ HCR plaintiffs say Florida judge helped them

The two Jersey Shore Tea Party men who filed a 15-count pro se lawsuit against the healthcare reform bill now say that a US district judge in Florida made statements in his ruling that helps their case.

Nicholas E. Purpura and Donald R. Laster, Jr. sued the Secretaries of Health and Human Services, Treasury, and Labor three weeks ago (Purpura et al. v. Sibelius et al.), alleging that HR 3590, the Patient Protection and Affordable Care Act, violates the Constitution in fifteen different ways. Last night, Laster, in an e-mail to this Examiner, said that Judge Roger Vinson of the Northern Florida District Court, in his ruling that the case of Florida et al. v. HHS et al. could go to trial, actually made two statements that directly addressed the first count of their own complaint: that the HCR bill originated in the wrong House of Congress.

At issue in the Vinson ruling was whether the penalty that the bill provides for against those who fail to buy health insurance is a tax or a fine. Said Vinson,

In this case, there are several reasons (perhaps none dispositive alone, but convincing in total) why it is inarguably clear that Congress did not intend for the exaction to be regarded as a tax.

Vinson then went through the entire history of two bills debated in the House (HR 3200 and HR 3962) and the Senate (S 1796). Those three bills said "tax." Vinson then says that HR 3590 says "penalty," not "tax." But Vinson described the Act as "the final version of the healthcare legislation later passed by the Senate on December 24, 2009." (Emphasis added.) That is exactly whas Purpura and Laster point out: HR 3590 is headed, "In the Senate of the United States." Senate, not House. Furthermore, on page 20, Vinson refers to a Technical Explanation by the Joint Committee on Taxation and dated March 21, 2010, described as:

the same day the House voted to approve and accept the Senate bill and two days before the bill was signed into law.

The problem: the US Constitution (Article I, Section 7, Clause 1) opens:

All bills for raising revenue shall originate in the House of Representatives.

Vinson, of course, nowhere mentioned this part of the legislative history: that HR 3590 originally was a bill to extend a first-time homebuyer's tax credit to members of the armed forces. The Senate simply discarded the entire contents of that bill, including even its short title, and substitute new language that, despite the "HR" numerical designation, began with "In the Senate of the United States" and was, to all intents and purposes, a Senate bill. Richard T. Luzzi, a lawyer specializing in real estate and one-time primary challenger to Rep. Rodney Frelinghuysen (R-NJ-11), has already given this Examiner his opinion of that substitution: "bait and switch."

Laster pointed out, as well, that Vinson appears convinced that the "individual mandate" is a penalty, i.e., a fine. (By so doing, Vinson rejected Count 3 of the Florida case as a moot point, since Count 3 refers to an unconstitutional "tax.") As such, it would qualify as a bill of attainder on a large class of citizens and lawful residents, because it would impose that fine without trial or conviction of a crime. (Judge Andrew P. Napolitano, formerly of the Essex Vicinage of the New Jersey Superior Court, has made statements to similar effect.)

Laster also pointed to the language in Vinson's ruling defining standing to sue. Standing requires "an injury in fact, meaning an injury that is concrete and particularlized, and actual or imminent." On pages 31 and 32 of his ruling, Vinson says that an injury yet to occur in the future still qualifies as imminent if the date is specifically fixed. "If the injury is certainly impending, that is enough," and a plaintiff does not have to wait for the enforcement of a statute to begin, or even until some maximum time in advance of the enforcement, in order to claim an "immininent" "injury in fact" and challenge the statute on that ground. Thus by ruling that certain individual plaintiffs in the Florida case have standing, Vinson has established a precedent saying that Purpura and Laster have standing to bring their own case.

A related case brought by Attorney General Ken Cucchinelli of Virginia goes to trial today.

Like this article? Want to be notified of more? Click Subscribe, above.