Now that health care reform has been revived from its near death experience, it appears that it will face a series of Constitutional challenges. My home state of Virginia has fired the opening shot. Via Twitter, no less.
To emphasize how ready Virginia is to take the health care overhaul to court, take a look at this tweet from Attorney General Ken Cuccinelli this morning:
“Well, they did it. Once the president signs it into law, we’ll walk across the street and file suit b/c the ind mandate is unconstitutional”
We eagerly await a look at the filings penned by Cuccinelli’s office. But in a lengthy interview on the topic late last week, Cucccinelli indicated he would argue, as his tweet suggests, that requiring individuals to purchase health care exceeds the federal government’s authority to regulate interstate commerce.
He also said that requiring states to participate in a health insurance exchange, as envisioned by the bill, violates state sovereignty.
Apparently, Cuccinelli won’t be alone.
Attorneys general from at least 12 states say they will challenge the constitutionality of the healthcare reform bill passed by the House of Representatives Sunday night.
The threatened action suggests the controversial measure is about to move from the legislative realm into what could become a protracted and messy fight in the courts. The attorneys general say they will sue once President Obama signs the bill into law. They are pledging to take their battle all the way to the US Supreme Court.
“The health care legislation Congress passed tonight is an assault against the Constitution,” said South Carolina Attorney General Henry McMaster. “A legal challenge by the states appears to be the only hope of protecting the American people from this unprecedented attack on our system of government,” he said in a statement.
Florida Attorney General Bill McCollum issued a similar statement late Sunday. “If the president signs this bill into law, we will file a lawsuit to protect the rights and interests of American citizens,” he said.
The comments came after a Sunday night conference call in which attorneys general from 11 states expressed support for legal action to block the law. In addition to Florida and South Carolina, the participating attorneys general were from Alabama, Nebraska, Texas, Oklahoma, Pennsylvania, Washington, Utah, North Dakota, and South Dakota.
While I think the challenge has merit based on both the letter of the Constitution and some recent precedents, I’m skeptical of this working. For one thing, since the individual mandate doesn’t go into effect until 2013, I’m not sure there’s a case in controversy yet established for that particular prong of the bill. For another, although my mind doesn’t stretch far enough to see this as an “interstate commerce” issue, previous Courts have displayed wildly creative means of making laws they like fit under that umbrella.
Although, I must say, Cuccinelli’s argument on that score is pretty persuasive:
Virginia is the only state to date to pass a law that says its residents cannot be required to purchase health insurance. On Wednesday, Gov. Bob McDonnell is scheduled to sign the legislation, passed by the General Assembly in its recently concluded 2010 session.
The health-care reform bill includes a mandate that requires nearly every American to be insured by 2014 or face a fine. The law provides an exemption for low-income people.
Cuccinelli’s argument is that the mandate included in the reform bill creates a legal conflict between the federal government and Virginia.
“We believe the federal law is unconstitutional as it is based on the commerce clause. Simply put, not buying insurance is not engaging in commerce,” the attorney general added. “If you are not engaged in commerce, the federal government cannot regulate this inaction. Just being alive is not interstate commerce. If it were, Congress could regulate every aspect of our lives.”
Ultimately, the Supreme Court will have to decide the issue and Obama will likely have at least one more Justice on the court by the time this bubbles through the system.
American University lawprof Darren Lenard Hutchinson points out, rightly, that there’s a certain irony in conservatives challenging the constitutionality of an insurance mandate when, “In order to avoid this outcome, Congress could have raised taxes on everyone, created a public plan, and fully subsidized participation by indigent uninsured individuals. This alternative is more expansive than the voted upon exchange system, coupled with a mandate. The latter option uses a market based approach.”
On the other hand, he cites precedent of case law where SCOTUS has upheld laws that, in effect, required people to purchase wheat and medical marijuana rather than grow said crops at home. This strikes me as more than a stretch. Congress wasn’t obligating anyone to purchase anything; it was merely regulating who could grow and distribute.
Georgetown lawprof Randy Barnett, writing in yesterday’s WaPo, argues the conservative-libertarian case against the constitutionality of several parts of the bill admirably. Key takeaways:
But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.
If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.
A piece from last August by former Bush DOJ officials David Rivkin and Lee Casey extends this analysis:
The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.
But even Barnett is dubious of some of the arguments being bandied about.
Several states are considering measures attempting to exempt their residents from an individual health insurance mandate. While such provisions may have a political impact, none is likely to have any effect on the legislation’s constitutionality. Under the 10th Amendment, if Congress enacts a law pursuant to one of the “powers . . . delegated to the United States by the Constitution,” then that law is supreme, and nothing a state can do changes this. Any state power to “nullify” unconstitutional federal laws has long been rejected.
He extends my SCOTUS vote guessing considerably:
Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument? Although the first three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won’t be five votes to thwart the popular will to enact comprehensive health insurance reform.
But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won’t go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.
But, I’m guessing, not all that vulnerable. As Hutchinson and others have pointed out, even if SCOTUS strikes down parts of the bill as unconstitutional, the rest of the legislation is severable and would thus continue to stand as law.
