Rule of Law

There’s More Politics Than Legal Precedent in Lawsuits

Before the ink was dry on President Barack Obama’s signature on the health care reform legislation, 13 state attorneys general, including Mike Cox from Michigan, filed suit in federal court in Florida seeking a judicial ruling that health care reform is unconstitutional. Their embarrassingly weak claims are political theater, not genuine constitutional arguments, and a waste of both taxpayer money and judicial resources.


At the center of the Florida suit is the claim that the Patient Protection and Affordable Care Act is “an unprecedented encroachment on the sovereignty of the states,” and thus a violation of the Constitution’s 10th Amendment. This argument should produce laughter from the bench for the simple reason that states are entirely free to rid themselves of any burdens imposed by the act by withdrawing from the federal Medicaid program.


The AGs candidly acknowledge this fact in their complaint, but assert that withdrawing from the Medicaid program would be politically unpopular because “Medicaid has, over the more than four decades of its existence, become customary and necessary for citizens throughout the United States.”


In other words, Medicaid is popular and withdrawing from it would jeopardize their political careers, so the AGs want the courts to allow their states to accept many billions of federal dollars without bearing the corresponding burdens of taking steps to reduce medical costs and expand insurance coverage. It’s no surprise the AGs do not cite a single case to support their politically expedient view of the law; no such cases exist.


The AGs also challenge the act’s requirement that Americans who can afford insurance buy it or pay a tax penalty.


Putting aside serious questions about whether the AGs have “standing” to raise this issue on behalf of individuals in their states, this claim is also a clear loser. This mandate is constitutional because it fits comfortably within Congress’ constitutional powers. Most important, Congress has the power to regulate interstate commerce, and to make laws that are necessary and proper to carry into execution the powers vested by the Constitution in the U.S. government. Everyone recognizes that the health care and insurance industries constitute interstate commerce; these industries represent approximately 20% of the entire U.S. economy.


The argument by the AGs is that this broad commerce clause power does not include the power to require individuals to buy insurance or pay a penalty, because the decision not to buy insurance is not commerce.


This is silly. The uninsured engage in commerce when they get sick or injured, and there is no such thing as a constitutional right to force hospitals and American taxpayers to pay your uninsured medical costs.


This is the same reason every driver in this country has auto insurance: When uninsured drivers cause serious accidents, they often incur huge costs that cannot be paid without insurance. And the federal government regulates individual conduct all the time, as it does when it prevents individuals from cultivating or distributing drugs, even in their backyards and even if the drugs are for personal use.


The Supreme Court upheld, under the commerce clause, federal restrictions on the cultivation of marijuana for personal, medicinal use in a 6-3 ruling in 2005 in Gonzalez v. Raich, a case that is devastating to the AGs’ claims.


The states have a long history of leadership on health care reform — indeed, Congress used a health reform plan signed into law by then-Massachusetts Gov. Mitt Romney as one of its models. And the Patient Protection and Affordable Care Act gives states considerable flexibility to shape insurance exchanges, allowing states to continue to act as the laboratories of our democracy.


The act reflects the genius of our federalist system, which makes the AGs’ grandstanding in this lawsuit all the more unfortunate.


Doug Kendall is the president of the Constitutional Accountability Center, a think tank, law firm and action center in Washington, D.C., , dedicated to the Constitution’s text and history.