President Obama had hardly lifted his pen from the new health care bill when the attorneys general of 13 states began drafting lawsuits against the legislation.
The states argue that parts of the bill, mainly the individual mandate portion, violate the commerce clause of the Constitution, which does not authorize Congress to “make the public buy things” or force citizens to engage in commerce.
The individual mandate provision will take effect in 2014 and will require financially able citizens to purchase some form of health insurance or face a fine, said Shana Alex Lavarreda, director of health insurance studies at the UCLA Center for Health Policy Research.
“The big question here is whether Congress’s power extends to making people engage in economic activity,” said Randy Barnett, professor at Georgetown University’s School of Law. “That’s something they’ve never tried to do before.”
Proponents of the bill believe it falls well within the boundaries of the commerce clause.
“The commerce clause has been interpreted as giving Congress the power not only to regulate interstate commerce, but to regulate any activity with a substantial effect on interstate commerce,” said Russell Korobkin, professor at the UCLA School of Law.
Korobkin added that courts could perceive the bill as having a significant effect on interstate commerce and thus uphold its demands.
Lavarreda said the bill will alleviate American health care’s current “death spiral” by including all citizens in the risk pool, thus preventing the system from being drained of funds by ill people and abandoned by healthy citizens who see premiums as being too high. She, like many experts, said the legislation is a legal exercising of Congressional power.
“(The bill) is being portrayed as the government saying, “˜Buy health insurance or we’ll put you in jail,'” Lavarreda said. “This is not true. … There is a small fine, and the government is not forcing anyone to do anything.”
Under the individual mandate segment of the bill, eligible Americans who opt not to purchase health insurance through their employers or the government will be subject to a fine of $695 per year, according to Gerald Kominski, associate director of the UCLA Center for Health Policy Research.
“(The mandate) is a tax,” said Mark Peterson, professor at the UCLA School of Public Affairs. “Obama has obviously tried not to use the word, but this is just a tax.”
Peterson said if the conservative idea is that Congress has overstepped its bounds with the mandate by forcing people to engage in commerce, conservatives should, by principle, be lobbying to quash systems like Medicare and public schools which similarly “force” citizens to participate through payroll and property taxes.
According to Korobkin, the individual mandate slice of the bill cannot be rejected by courts if viewed as a simple tax on America’s uninsured.
“(Congress) has taxing power under the Constitution, so as long as distinguishing between the insured and the uninsured serves a rational purpose, there is no Constitutional problem (with the mandate),” Korobkin said.
Another less hotly debated claim presented in the lawsuit holds that the bill violates the Tenth Amendment, which gives the states all powers that the Constitution does not explicitly assign to the federal government. The lawsuit argues that because there are no clear Constitutional stipulations regarding health care, states have a right to ignore the bill.
Peterson’s ideas reflect the general consensus that this claim will not survive in court, saying that the Tenth Amendment’s role in enacting legislation is historically “fuzzy.”
“(The amendment) affirms that America has sovereign states, but there is no clear dividing line on what is a federal right and what is a state right,” Peterson said. “The federal government’s other roles that were fuzzy have been fully accepted.”
According to Peterson, the lawsuit will first be tried in federal district courts. If one or more courts agree with the claims, then the case will be heard in circuit courts of appeals. If one or more of these bodies concurs with the suit, it will advance to the Supreme Court.
Legal and health care professionals express only a smidgen of promise that the lawsuit will triumph.
“The court will have to take this seriously, but how it will rule is another matter,” said Barnett, adding that courts almost always uphold Congress’s workings.
And while some scholars say hearings could get underway promptly, Kominski said the states have no case to argue until at least 2014.
“The legal challenges that are being threatened are very unlikely to move forward,” Kominski said. “You can’t bring a lawsuit to court until damage has been incurred.”
Kominski said because the individual mandate’s fines will not be imposed on citizens until 2014, the lawsuit’s proponents currently have no legitimate damages to present in court.
“I think it’s conceivable that the Supreme Court as it’s currently composed could find merit in this state action,” Kominski said. “But it’s unlikely the case will reach the Supreme Court before 2015, and there’s no way to guess who will be on the bench then.”
While the lawsuit’s legal fate is doubt-ridden, one thing is nearly certain: California’s attorney general won’t be joining the anti-health care bandwagon anytime soon.
“There’s no way,” Peterson said. “Jerry Brown would never do that.”