States File Lawsuits Challenging Obamacare

The attorneys general of 14 states are suing the federal government over the constitutionality of Obamacare.

From the Christian Science Monitor:

Democratic leaders have downplayed any potential legal problems with the healthcare reform package. Many legal analysts agree with them. Others suggest the issue is open and could produce a landmark decision if the high court decides to take it up.

In addition to Florida, participating plaintiffs in the lawsuit include attorneys general from South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington State, Idaho, and South Dakota. The suing attorneys general are Republicans except James “Buddy” Caldwell of Louisiana, who is a Democrat.

The Florida-filed lawsuit identifies two victims. It says the new law infringes the liberty of individual state residents to choose for themselves whether to have health insurance. It also says the states themselves are victims of a federal power grab by leaders in Washington.

[…]

The suit also says the tax penalty for noncompliance with the individual mandate to buy health insurance “constitutes a capitation and a direct tax that is not apportioned among the states according to census data, thereby injuring the sovereign interests of [the states].”

The tax penalty is unrelated to any taxable event or activity, the suit says. “It is to be levied upon persons for their failure or refusal to do anything other than to exist and reside in the United States,” the suit says.

This doesn’t just injure individuals who have a right to make healthcare decisions without government inference, the suit says. It also injures state governments who are forced to pay for the higher number of individuals coerced into enrolling in Medicaid.

Like the Virginia lawsuit, the Florida-filed suit also argues that Congress does not have the authority under the US Constitution to compel citizens to buy health insurance or punish them if they do not. An individual’s choice not to have health insurance is not “commerce” and thus does not fall within Congress’s power to regulate interstate commerce, the suit says.

From CNN:

Officials from 14 states have gone to court to block the historic overhaul of the U.S. health care system that President Obama signed into law Tuesday, arguing the law’s requirement that individuals buy health insurance violates the Constitution.

Thirteen of those officials filed suit in a federal court in Pensacola, Florida, minutes after Obama signed the Patient Protection and Affordable Care Act. The complaint calls the act an “unprecedented encroachment on the sovereignty of the states” and asks a judge to block its enforcement.

“The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage,” the lawsuit states.

The case was filed by Florida Attorney General Bill McCollum and joined by 11 other Republican attorneys general, along with one Democrat. McCollum said the new law also forces states “to do things that are practically impossible to do as a practical matter, and forcing us to do it without giving any resources or money to do it.”

The Washington Post also covers the story.

Doug Bandow at the American Spectator cheers Virginia Attorney General Cuccinelli, who seems to be taking most of the spotlight for the challenge against Obamacare. Personally, I’m under the impression that Cuccinelli’s challenge — that Obamacare violates a recently passed Virginia law — is the least likely to succeed in court. And that’s probably why the media will focus all attention on him.

Reason Magazine mentions the court challenges, and Damon Root discusses some of the underpinnings of the legal challenge and the the precedents that support it. Root comments on the involvement of the Commerce Clause on health care, and also references the opinions of law professor Randy Barnett on the constitutionality of the individual mandate:

Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power “to regulate commerce . . . among the several states.” Historically, insurance contracts were not considered commerce, which referred to trade and carriage of merchandise. That’s why insurance has traditionally been regulated by states. But the Supreme Court has long allowed Congress to regulate and prohibit all sorts of “economic” activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that’s how the court would probably view the regulation of health insurance.

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.

Roger Pilon at the Cato Institute also has a good analysis of the arguments underlying the challenge to Obamacare.

ObamaCare compels individuals to buy insurance from a private company (why stop there? why not cars from GM?), failing which they will be required to pay a tax (fine?).  This is an unprecedented expansion of Congress’s power “to regulate interstate commerce.”  But even if it were to pass the modern Commerce Clause test, the tax should fail because it’s not apportioned among the states in accordance with their population.

Let’s be clear, however.  This suit was brought because the 13 states (and I predict more will follow) see the handwriting on the wall.  ObamaCare will mark the effective end of federalism as we’ve known it, will bankrupt the states, and, because of that – here’s the clincher – is but a  stalking horse for federal single-payer health care in American.  This suit will keep the issue alive until November, when the American people will have a chance to weigh in.

Read the whole thing here.

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