Legal News

We Just Can?t Get Enough (Of Health Care and the Constitution)

By Ashby Jones

Okay, LBers, raise your hand if you’re not planning on suing over the constitutionality of the health-care bill. Let’s see, that makes, well, we see one, two readers with their hands up. Oh, there’s another one out in the Dakotas. Oh, and a slender man out in Missouri. Hey there, slender man.

We haven’t yet gotten word any filed suit, but boy does it seem like an avalanche of suits is on its way.

For now, the most high-profile group rattling its sabers is a collection of ten state attorneys general who’ve reportedly banded together and plan to file suit as soon as President Obama signs the bill in the law, which appears likely to happen later in the week. Click here for the CNN story; here for an AP story on Texas’ plan to join the lawsuit; here for an AP story on Nebraska’s decision to join the suit; here, here, here, here and here for previous LB posts on the bill and the Constitution.

Others planning to sue over the bill reportedly include Liberty University. That’s right, Liberty U. “Congress does not have unlimited authority to regulate private actions,” said Mathew Staver, the dean of the law school at Liberty, to the Washington Post.

So what are these lawsuits slated to look like? It seems like the potential plaintiffs are looking at a host of potential grounds, all of which will likely hinge on this assertion: the Constitution does not authorize Congress to pass so sweeping a law.

Everyone seems to be buzzing about Section I, Article 8 of the Constitution — the Commerce Clause — which states that Congress shall have power “To regulate Commerce . . . among the several States.”

Now, the U.S. Supreme Court, throughout its long and illustrious history, hasn’t invalidated too many laws on Commerce Clause grounds.

But it has shot down some. Perhaps most notably in the last couple decades, the Court shot down a gun-control regulation in 1995 on grounds that the law was not sufficiently tied to interstate regulation to sweep it into Congress’s power.

Writing at Vanity Fair, Andrew Cohen isn’t so sure the health-care bill is headed for the same fate. He writes:

But at the end of it all, after hundreds of millions of dollars are spent on legal fees and experts and court time and the like, it is nearly inconceivable that the federal judiciary will rise up and strike down the reform measure in any meaningful way. The best argument offered by its opponents-that the federal "mandate" requiring individuals to get and maintain insurance violates the Commerce Clause of the Constitution-is weak at best.

Randy Barnett, who wrote this article earlier Monday on potential challenges, later in the day, held a Q&A with WaPo readers. He agreed that, based on existing Supreme Court precedent, the Court would probably not be inclined to strike the law down, though he left an opening:

The safe bet is always that the Supreme Court will uphold the power of Congress, as it generally has for the past 60 years or longer. But this is true right up until the day the Court surprises us by striking down a law. See e.g. Citizens United.

In any event, LBers, stay tuned. This could be a fun, fascinating ride.

Full post as published by Law Blog - WSJ.com on March 22, 2010 (boomark / email).