Ever since a federal judge in Florida ruled the health care law unconstitutional, the White House has portrayed the opinion as an outlier made by an activist judge. Many other judges have come to a different conclusion, the argument goes.
This was the tack President Barack Obama took in a pre-Super Bowl interview with Fox News' Bill O'Reilly, who asked about the recent Florida ruling.
"Well, I think the judge in Florida was wrong," Obama said. "Keep in mind that we've had 12 judges said -- that just threw this case out -- the notion that the health care law was unconstitutional."
Obama's point was clear: The Florida case got the headlines, but courts are still overwhelmingly ruling with Obama on the key question of constitutionality.
We asked the White House for some backup on the claim about the 12 dismissed cases, and they provided a list that we've appended to the bottom of this article. The White House is correct they were dismissed, but they were dismissed for procedural reasons, often because the judges concluded the plaintiffs either lacked proper standing or jurisdiction to bring the lawsuit.
The judges did not opine on the merits of these cases, such as whether the law is constitutional. They dismissed the cases for a variety of reasons: in some, the argument was that the plaintiff's lacked standing because the individual mandate portion of the law (which requires people to have health insurance) had not yet kicked in. It goes into effect in 2014. In other cases, the judges said the plaintiffs lacked standing because they did not establish that they would be injured by the law.
Besides the judges who dismissed 12 cases on procedural grounds, four judges have ruled on the merits of various cases challenging the health care law. Two ruled in favor of the administration and two against:
Thomas Moore Law Center vs. Barack Hussein Obama
On Oct. 7, 2010, U.S. District Judge George Steeh, a Bill Clinton appointee to the Eastern District of Michigan, ruled that Congress has the right to impose the individual mandate portion of the health care law under the Commerce Clause of the constitution.
"The health care market is unlike other markets," Steeh wrote. "No one can guarantee his or her health, or ensure that he or she will never participate in the health care market ...
"In this case, the minimum coverage provision of the Health Care Reform Act contains two provisions aimed at the same goal," Steeh wrote. "Congress intended to increase the number of insureds and decrease the cost of health insurance by requiring individuals to maintain minimum essential coverage or face a penalty for failing to do so. Because the 'penalty' is incidental to these purposes, plaintiffs' challenge to the constitutionality of the penalty as an improperly apportioned direct tax is without merit."
Score one for the constitutionality of the health care law.
Liberty University vs. Timothy Geithner
In an opinion handed down on Nov. 30, 2010, in the Western District of Virginia, U.S. District Judge Norman Moon, a Clinton appointee, also ruled the law constitutional under the Commerce Clause, the constitutional principle that allows the federal government to regulate commerce.
"I hold that there is a rational basis for Congress to conclude that individuals' decisions about how and when to pay for health care are activities that in the aggregate substantially affect the interstate health care market," Moon wrote. "Nearly everyone will require health care services at some point in their lifetimes, and it is not always possible to predict when one will be afflicted by illness or injury and require care.…
"Far from 'inactivity,' by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance. As Congress found, the total incidence of these economic decisions has a substantial impact on the national market for health care by collectively shifting billions of dollars on to other market participants and driving up the prices of insurance policies."
So the first two decisions on the constitutional merits went Obama's way. But the next two did not.
Commonwealth of Virgina vs. Kathleen Sebelius
In a ruling filed on Dec. 13, 2010, U.S. District Judge Henry E. Hudson, a President George W. Bush appointee, wrote that "despite laudable intentions of Congress in enacting a comprehensive transformative health care regime, the legislative process must still operate within constitutional bounds."
"Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market," Hudson wrote. "In doing so, the enactment of the Minimum Essential Coverage provision exceeds the Commerce Clause powers vested in Congress under Article I."
Hudson struck down the individual mandate, but upheld the rest of the law.
State of Florida vs. United States Department of Health and Human Services
This ruling made the biggest headlines. In a case brought by 26 states challenging the health care law, Senior U.S. District Judge Roger Vinson of Pensacola, Fla., a Ronald Reagan appointee, issued a sweeping ruling on Jan. 31., 2011, that the individual mandate is unconstitutional and so entwined with the rest of the law that the entire thing should be thrown out.
"In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed," Vinson wrote. "It cannot function as originally designed. There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions -- which, as noted, were the chief engines that drove the entire legislative effort -- for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone. Such a quasi-legislative undertaking would be particularly inappropriate in light of the fact that any statute that might conceivably be left over after this analysis is complete would plainly not serve Congress' main purpose and primary objective in passing the Act. The statute is, after all, called "The Patient Protection and Affordable Care Act," not "The Abstinence Education and Bone Marrow Density Testing Act." The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker."
There are other cases pending, as well as appeals on nearly all of the cases listed above. But here's the score so far:
- 12 cases dismissed for procedural reasons
- 2 cases in favor of the Obama administration on the merits (both judges had been appointed by Democrats)
- 2 cases against the Obama administration on the merits (both judges had been appointed by Republicans)
All sides agree that the issue will ultimately be decided by the Supreme Court.
Back to Obama's statement, "Keep in mind that we've had 12 judges said -- that just threw this case out -- the notion that the health care law was unconstitutional."
The president's statement "very clearly implies the judges have said it's not unconstitutional," said legal commentator Stuart Taylor Jr. "This is highly misleading White House spin. A ruling on standing is never a ruling on whether the underlying law is constitutional or not."
Avram Goldstein, a spokesman for Health Care for America Now, said the point is that despite all the media attention given to the Florida court decision, "This one case is not the be-all and end-all."
The judges in the 12 cases listed by the White House may not have weighed in on the constitutionality issue, Golstein said, "but if a judge throws it out for procedural reasons, you lost."
Kate Bedingfield, a spokeswoman for the White House, made a similar argument.
"Twelve lawsuits challenging the law's constitutionality have been dismissed," Bedingfield said. "That’s a fact, and that is the point the president was making."
We disagree. Obama said the 12 judges dismissed the cases because they disagreed with the claim that the health care law was unconstitutional. They did not. They dismissed the cases because of procedural grounds. We find his claim False.
Appendix: 12 Cases Cited by the White House (PolitiFact added links to the cases and rulings that we could find online)
Archer v. U.S. Senate, dismissed April 12, 2010
Baldwin v. Sebelius, dismissed Aug. 27, 2010
Burlsworth v. Holder, dismissed on Sept. 8, 29/8
Coalition for Parity Inc. v. Sebelius, dismissed on June 21, 2010
Fountain Hills Tea Party Patriots v. Sebelius, dismissed June 2, 2010
Mackenzie v. Shaheen (NH) - dismissed May 26, 2010
New Jersey Physicians v. Obama, dismissed Dec. 8, 2010
Schreeve v. Obama, dismissed Nov. 4. 2010
Sollars v. Reid, dismissed April 2, 2010
Taitz v. Obama, dismissed April 14, 2010
U.S. Citizens Association v. OMB, dismissed 8/2
Bryant v. Holder, dismissed Feb. 3, 2011