Are Legal Challenges To Health Reform Credible?

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A dispatch from our colleague Alex Altman:

Less than an hour after President Obama signed the health-care reform bill into law, attorneys general from 13 states filed a lawsuit challenging the bill’s constitutionality. Florida Attorney General Bill McCollum, acting on behalf of 13 states, filed suit in U.S. District Court in Pensacola, alleging that the bill violated the constitution by forcing citizens to buy health insurance or face a tax penalty. McCollum and his co-plaintiffs plaintiffs – all but one of whom are Republicans – also charged that the sweeping overhaul infringed on the sovereignty of states and will cripple their ailing budgets. “The act represents an unprecedented encroachment on the liberty of individuals living in the plaintiffs’ respective states, by mandating that all citizens and legal residents of the United States have qualifying health care coverage or pay a tax penalty,” the plaintiffs charged. “The 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.”

Several legal scholars have already argued that these challenges are unlikely to succeed. “I don’t think there are any really valid constitutional challenges to this legislation. I think Congress is acting within its constitutional powers, granted by Article I of the Constitution, in enacting this legislation,” Timothy Jost, a professor at Washington and Lee University School of Law, said during an interview with CSPAN. Jost is referring to what’s known as the Commerce Clause, which allows the Congress to regulate interstate commerce, and which would seem to insulate the bill from objections that its regulation of the insurance industry is unconstitutional.

In an article published Sunday in the Washington Post, however, Randy Barnett, a constitutional law professor, argued the individual mandate, which does not kick in until 2014, was taking Congress into uncharted territory. The individual mandate, Barnett argued, “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.” In a response on his blog, Jack Balkin of Yale Law School offered a rebuttal, arguing “Congress pretty clearly has the power to pass such a tax under its powers to tax and spend for the general welfare. This is an easy case for constitutionality.” Balkin adds: “Congress also has the power to require the individual mandate under the Commerce clause, despite Barnett’s objection. That is because Congress can regulate economic activities that have a cumulative economic effect on interstate commerce.”

But for the government, this is far from a slam dunk, says Jonathan Turley, a constitutional law professor at George Washington University. “If one was taking odds in Vegas, you’d have to give Congress the edge,” he told TIME. But Turley argues that characterizing the suit as frivolous understates the sweeping scope of the newly minted law and the degree to which the Supreme Court’s conservative wing may be alarmed at how the federal government has claimed powers the constitution’s framers’ arguably intended the states to possess. “Federalism guarantees states a fierce form of sovereignty,” he says, noting that four Supreme Court justices could certainly side with the states, leaving Justice Anthony Kennedy representing the pivotal swing vote.

Virginia and Idaho already have statutes blocking federal mandates from infringing on state laws, and Virginia AG Ken Cuccinelli filed his own legal challenge to the bill just minutes after Obama signed it during a jubilant celebration in the White House’s East Room. (Idaho was one of the 13 states banding together with Florida; the other 11 were Alabama, Colorado, Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington.) But after sweating out the politics of the health-care reform bill and enduring a tight vote, the Obama Administration doesn’t seem to be fretting about the bill’s legality. “Every single major piece of legislation that’s ever been passed in this country has engendered lawsuits. That’s the nature of our system,” senior adviser David Axelrod told Good Morning America. “We’re not concerned about these lawsuits.”