By Jon Hood
ConsumerAffairs.com
March 27, 2010
The past week was a momentous one for the health care debate: after a year-long struggle, President Obama finally signed a bill into law, a stunning turnaround for a reform effort that appeared dead just weeks earlier.
The bill, hailed as the most far-reaching legislation since the enactment of Medicare in 1965, was signed on Tuesday, seemingly putting an end to a debate that has consumed Congress for the last year. But two lawsuits by 14 state attorneys general threaten to continue the debate indefinitely, even as Congress moves on to banking reform and creating a long-awaited consumer financial protection agency.
The suits -- led by Floridas Bill McCollum and Virginias Ken Cuccinelli -- attack health care reform as unconstitutional, and specifically focus on the bills individual mandate requiring individuals to carry health insurance or pay an annual penalty.
Both suits claim that the bill exceeds Congresss power under the Commerce Clause, which allows the federal government to regulate any activity that substantially affects interstate commerce. McCollums suit claims that the health care bill represents an unprecedented encroachment on the liberty of individuals living in the Plaintiffs respective states, and that [t]he Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage.
Cuccinellis suit, which rests on similar legal grounds, argues that the state is especially qualified to challenge the new regulations.
Virginia is in a unique situation that allows it the standing to file such a suit, reads Cuccinellis website, since Virginia is the only state so far to pass a law protecting its citizens from a government-imposed mandate to buy health insurance. Cuccinelli correctly notes that, when federal and state law conflict, federal law typically trumps, but contends that because the federal law is unconstitutional, Virginias law should prevail.
Suits aiming for Supreme Court
McCollum has made it clear that he is aiming for the Supreme Court, and said he is confident the court is going to declare the new healthcare law unconstitutional.
Despite his self-assurance, many legal experts doubt that the suits will succeed. The Supreme Court has regularly upheld regulations on activities that, at first glance, have no direct effect on interstate commerce, holding that such regulations are permissible if the regulation at issue is part of a larger scheme to regulate the marketplace itself.
And for proponents who argue that consumers cant be penalized for doing nothing -- that is, refusing to buy health insurance -- Constitutional law professor Adam Winkler told the Los Angeles Times that those individuals should just do nothing this April 15 when [their] tax bill is due.
In addition to their long odds, the lawsuits carry a rich irony seldom noted in the press. The mandate now being so vociferously opposed by up-and-coming conservatives was once the centerpiece of a Republican framework for health-care reform. The idea was proposed as an alternative to President Clintons vision of universal health care, and Mitt Romney enacted mandate-centered reform during his term as governor of Massachusetts. Romney, hailed as a contender for the 2012 Republican nomination, now attacks the bill as an unconscionable abuse of power, and supports efforts to repeal it.
McCollums suit has so far been joined by the Republican attorneys general for South Carolina, Nebraska, Texas, Utah, Alabama, Michigan, Colorado, Pennsylvania, Washington State, Idaho, and South Dakota. Louisianas James Buddy Caldwell is so far the only Democrat to join either suit.
