Courtesy of: HealthInsurance.org
Though President Barack Obama signed The Patient Protection and Affordable Act and the Health Care and Education Reconciliation Act of 2010 last month, both commonly known as health care reform, at least 20 states have lined up to file lawsuits against it as of April 21, 2010. The lawsuits, much like the health care debates, have been extremely polarizing and, not surprisingly, have been filed mostly along party lines.
Most states with a Republican governor have filed a lawsuit against health care reform. A few states with a Republican governor but a Democratic attorney general like Arizona and Nevada have turned down the dissenting opinion of their attorney general and hired another lawyer to fight the lawsuit on behalf of the state. Some states like Colorado and Michigan have joined the lawsuit on behalf of their Republican attorney generals despite having a Democratic governor. Louisiana is the only state where there has been bipartisan agreement regarding the lawsuit; Democratic Attorney General Buddy Caldwell agreed to join the health care lawsuit at the request of Republican Governor Bobby Jindal.
Thus far the tally of states that have joined the health care lawsuit are: Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington.
These states are challenging the legality of the law’s mandate that requires every individual to buy health insurance or face a fine. As stated by Governor Tim Pawlenty of Minnesota, this is an “unprecedented overreach by the federal government forcing individual citizens to buy a good or a service for no other reason then they happen to be alive or a person.”
So can Congress require every person to purchase health insurance from a private firm or be subject to a fine? According to Article 1 Section 8 of the Constitution, “Congress shall have Power…To regulate Commerce…among the several States.” As stated by Randy Barnett, constitutional law professor at Georgetown University, in the Washington Post, “Historically, insurance contracts were not considered commerce, which referred to trade and carriage of merchandise. That’s why insurance has traditionally been regulated by states.” However, as he further states, “the Supreme Court has long allowed Congress to regulate and prohibit all sorts of ‘economic’ activities that are not, strictly speaking, commerce.”
Barnett believes that the health care law has merit in the Constitution and meetS his barometer of a law’s constitutionality. He tests a law’s constitutionality based on the following criteria: “Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument?”
Ultimately, would the Supreme Court overturn the “law of the land”, as stated by President Obama? Professor Barnett reminds us that the Supreme Court is capable of a ruling that might be assumed as a partisan decision as they did in Bush v. Gore.
The lawsuit also cites a violation of the 10th Amendment, which states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Kentucky Attorney General Jack Conway, a Democrat, has refuted that claim by stating that “If the states choose not to set up an exchange, [Health and Human Services] does it for them.” Furthermore Professor Barnett states that “if Congress enacts a law pursuant to one of the ‘powers . . . delegated to the United States by the Constitution,’ then that law is supreme, and nothing a state can do changes this.”
Lastly, Governor Mike Beebe of Arkansas, a Democrat, has refused to join the lawsuit and offers a compelling reason for not doing so. He states that he would be “abusing [his] office to bring a suit that [he] believe[s] to be constitutionally frivolous.” Arkansas tried superseding federal authority in 1950s with their adherence to The Southern Manifesto. The manifesto declared that the Supreme Court had “encroach[ed] upon the reserved rights of the States and the people” in the Brown v. Board of Education ruling that desegregated public schools in 1954.
Then-Arkansas Governor Orval Faubus “rejected federal authority and tried to prevent nine black students from attending all-white Little Rock Central High School”, an incident known as The Little Rock Nine. However President Dwight Eisenhower ordered the Arkansas National Guard to protect the students and reminded the nation that the Supreme Court ruling was “the law of the land”, an example of federal authority overruling state authority.
The outcome of this constitutional challenge against health care remains uncertain. It is likely to reach the nation’s Highest Court, according to Supreme Court Associate Justice Stephen Breyer. If that is the case, then the three questions raised by Professor Barnett could be crucial to the eventual outcome.
Posted by Hasan on April 23, 2010 at 2:23pm.
