Health care reform challenges promised by states

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health care reformEven before health care reform legislation was passed Sunday night, Republican lawmakers on the floor of the House of Representatives promised a constitutional challenge of the bill led by the states. South Carolina Attorney General Henry McMaster made the promise real Sunday night by saying that South Carolina was joining with Florida's Attorney General Bill McCollum to challenge the "constitutionality of this profoundly unwise legislation."

There are two key provisions the attorneys general plan to question: one is the individual mandate to buy insurance, and the second is the rule of state sovereignty. They plan to question whether the government has the right to require individuals to purchase a product from a private company. The same question was asked in Massachusetts after its health care bill was signed into law requiring the citizens of Massachusetts to buy health insurance. So far, judges have dismissed these lawsuits.

Yet the individual mandate issue is the most unique challenge to the law. Opponents plan to question whether the commerce clause of the Constitution, which gives Congress the power "to regulate commerce . . . among several states," truly allows the Congress to mandate that people buy insurance. What's unique about this is that the Congress has used this clause to regulate economic activity, but never economic inactivity. As Randy Barnett points out in his article in The Washington Post, "Even during World War II, the federal government did not mandate that individual citizens purchase war bonds."

The state sovereignty issue relates to a more common fight: Does state law or federal law prevail? Several states have passed or plan to pass laws exempting their citizens from the individual health mandate. But under the 10th Amendment, the federal government does have the power to enact laws that can trump state law.

McMaster promises to take the case to the Supreme Court. In a statement released Sunday night, McMaster said he was "optimistic" that the attorneys general of Texas, Nebraska, Utah, North Dakota, South Dakota, Washington, Pennsylvania, Oklahoma and Alabama will also join the lawsuit. McMaster said, "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. The key question involved is whether personal freedom, state sovereignty and constitutional law will survive in America for future generations."

Virgina's Attorney General Ken Cuccinelli announced he will file a legal challenge, according to the March 16 American Spectator, even before the bill was passed, saying these reforms "violate the plain text of both the Ninth and Tenth Amendments." He went on to say, "Proponents of liberty must use all of the tools the Constitution provides to defend against this onslaught on our liberty. While the champions of health care centralization will tout their benevolent motives and complain about the inefficiencies and technicalities imposed by various constitutional provisions, citizens should remember that those inefficiencies and technicalities were placed there for a reason -- they are truly the bulwarks of individual liberty. If we ignore them to allow for the perceived crisis of the moment, they and the freedoms they protect are lost forever." Virginia was the first state to pass a bill saying it was illegal for the government to require individuals to purchase health insurance.

If the reconciliation bill does not pass the Senate, there may also be challenges to other provisions of the health care reform law. All the crazy deals that were made to get the bill through the Senate may lead to a challenge based on Article 1 of the Constitution that permits Congress to tax and spend in order to "provide for the common defense and general welfare of the United States." Since some of these provisions, such as the Cornhusker Kickback (which is a deal Sen. Ben Nelson (D-Nev.) struck for the citizens of Nevada), only benefit one state. Is that constitutional? This possible challenge will go away if all the special deals are removed from the bill when reconciliation passes the Senate.

Will this challenge make it to the Supreme Court? That's a big question which can't be answered at this time. First the case would need to be heard in a lower court. If judges throw out the issue even before it gets to trial, as has been done in Massachusetts, it won't have a chance to get there. But, I'm sure the Republicans can shop around for a judicial circuit that will be willing to hear the case. They have a lot more choices than challengers just in the state of Massachusetts had.

Whether the case is won or lost, it will be appealed all the way to the Supreme Court. The Court accepting the case is probably not in question, since only four justices are needed to accept a case, and I'm sure the four most conservative judges will vote to hear the case. So the big question will be, can they find a fifth judge willing to overturn the health care reform law if it makes it to the Supreme Court?

Lita Epstein has written more than 25 books, including "The Complete Idiot's Guide to Social Security and Medicare" and "The Pocket Idiot's Guide to Medicare Part D."
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