Florida Attorney General Bill McCollum filed the suit minutes after the president signed the bill. Judge disses Dems' 'Alice in Wonderland' health defense

A federal judge in Florida on Thursday said he will allow some of the lawsuit challenging the constitutionality of the health care law to proceed — and criticized Democrats for making an “Alice in Wonderland” argument to defend the law.

U.S. District Judge Roger Vinson allowed two major counts to proceed: the states’ challenge to the controversial requirement that nearly all Americans buy insurance and a required expansion of the Medicaid program.


In his ruling, Vinson criticized Democrats for seeking to have it both ways when it comes to defending the mandate to buy insurance. During the legislative debate, Republicans chastised the proposal as a new tax on the middle class. Obama defended the payment as a penalty and not a tax, but the Justice Department has argued that legally, it’s a tax.

“Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice-in-Wonderland” tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check,” he wrote.

Vinson ruled that it’s a penalty, not a tax, and must be defended under the Commerce Clause and not Congress’s taxing authority.

A Dec. 16 trial date is planned in the lawsuit, brought by 20 state attorneys general and governors. Many legal experts expect it to end up before the U.S. Supreme Court.

Just last week, a Michigan judge struck down a similar challenge to the reform law, arguing that Congress was well within its constitutional authority when it crafted the law. There are several lawsuits against the health law that are working their way through the court system, but the attorney general suit is the highest-profile challenge.

Vinson dismissed three of the states’ challenges, including complaints that the law interferes with state sovereignty as to whether employers must offer insurance; that the law coerces states into setting up insurance exchanges; that the individual mandate violates the states' due process rights.

The states argued in September that the law violates the Constitution by requiring an expansion of the Medicaid program that’s funded in part by the states and for penalizing people for not purchasing health insurance.

Florida Attorney General Bill McCollum, a Republican who lost the state’s gubernatorial primary this summer, filed the suit minutes after President Barack Obama signed the health care bill into law in March.

The Obama administration argued that the states and the National Federation of Independent Business, the small business lobby that joined the suit, don’t have standing to bring the lawsuit. They said that only individual taxpayers do.

The White House downplayed the ruling Thursday.

“Having failed in the legislative arena, opponents of reform are now turning to the courts in an attempt to overturn the work of the democratically elected branches of government,” Stephanie Cutter, an assistant to the president for special projects, wrote on the White House blog. “This is nothing new. We saw this with the Social Security Act, the Civil Rights Act, and the Voting Rights Act – constitutional challenges were brought to all three of these monumental pieces of legislation, and all of those challenges failed. So too will the challenge to health reform.”

But opponents of the law hailed it as a victory.

“It is the first step to having the individual mandate declared unconstitutional and upholding state sovereignty in our federal system and means this case will go forward to the summary judgment hearing that the court has set for December 16th,” McCollum said in a statement.

Vinson avoided politics for most of the 65-page order but noted the extraordinary partisanship surrounding the issue.

“As noted at the outset of this order, there is a widely recognized need to improve our healthcare system,” Vinson wrote. “How to accomplish that is quite controversial. For many people, including many members of Congress, it is one of the most pressing national problems of the day and justifies extraordinary measures to deal with it.

“I am only saying that (with respect to two of the particular causes of action discussed above) the plaintiffs have at least stated a plausible claim that the line has been crossed,” he added.