Legal Briefing: Will the Supreme Court Overturn Health Care Reform?

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States Challenge Health Reform's Mandate to Buy Insurance


Now that congressional Democrats have passed health care reform, and President Obama has signed it, the Republicans have no chance of repealing it until at least 2013 (Obama's veto pen will prevent any repeal before then), and only a teeny-tiny chance of repealing it thereafter. This leaves the main remaining threat to the reform package in the hands of the U.S. Supreme Court.

As has been reported nearly everywhere (see the The Wall Street Journal's Law Blog and Scotusblog for several links), 11 states have been threatening to file suits as soon as the bill is signed into law. That just happened, so they should be filing today. Two different lawsuits are on the table: one planned jointly by 10 states, and one by Virginia on its own, which relates in part to a Virginia statute. The states challenging the law have two heavy-hitter outside counsels to help: Baker Hostetler partners David Rivken Jr. and Lee Casey. Both men have long claimed the law would be unconstitutional.

The key question is whether the commerce clause of the Constitution allows Congress to require individuals to purchase a product, whether it's health insurance or anything else. The health insurance reform bill's "individual mandate" does just that. (The big irony is that a tax-funded single-payer system, the darling of the left and scourge of the right, would face no such constitutional problems: It would be easily justified by Congress's taxing power.)

Commentators have been doubtful that the Supreme Court will strike down the law, noting the court's long history of viewing the commerce clause expansively. For example, the court found Congress could consider the act of growing medical marijuana plants at home for personal consumption to be sufficiently related to interstate commerce that it could legislate on the subject. On the other hand, it struck down a law creating gun-free school zones and one creating a federal cause of action for violence against women as insufficiently related to interstate commerce to be constitutionally justified on that basis.

The current court has a different membership than those who ruled on the earlier commerce clause outlier cases, although Justice Kennedy may be the key swing vote again, as he so often is. Despite the Supreme Court's long history of deference to Congress on the commerce clause, the current court has shown an unusual willingness to overturn precedents, so I'm not sure how confident either side should be. Stay tuned.

Worst State For Litigation If You're a Business? West Virginia

The U.S. Chamber of Commerce just released its annual report ranking states based on lawyers' and executives' perception of how business-friendly the courts are, and West Virginia ranks worst, followed by Louisiana and Mississippi. The most business friendly? Delaware, followed by North Dakota and Nebraska. Of course, this report shouldn't be read as an objective assessment of American justice: Injured consumers would probably flip the list, ranking West Virginia at the top and Delaware at the bottom.

Tort Reform Fails in Georgia

The Georgia Supreme Court just struck down caps on pain and suffering in medical malpractice cases as a violation of the right to a trial by jury, a violation of equal protection, and a separation of powers issue. I wonder if Georgia will fare worse in next year's Chamber report?

And in the Business of Law ...

Remember Marc Macombs, the lawyer who billed his hometown of Calumet Park, Ill., millions of dollars for work he never did? Above the Lawreportsthat his former firm, Greenberg Traurig, is coughing up $3.2 million to make the town whole. However, that may not be the end of the firm's troubles. Macombs worked for several other towns. Though the firm's initial review suggests that he limited his trickery to Calumet Park, it's still possible more fraudulent billing could come to light.
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