Spin Control

WEDNESDAY, MARCH 24, 2010, 1:47 P.M.

They can sue, but can they win?

McClatchy offered this early analysis of the multistate lawsuit over health care reform:

By James Rosen
McClatchy Newspapers
WASHINGTON — The top prosecutors in 13 states — 12 of them Republicans — filed a lawsuit Tuesday challenging the health care bill minutes after President Barack Obama signed the landmark legislation into law.
In a suit filed in federal district court in Tallahassee, Fla., the attorneys general claimed that the new law’s requirement for all Americans to buy health insurance is unconstitutional.
“This bipartisan effort by attorneys general around the country should put the federal government on notice that we will not tolerate the constitutional rights of our citizens and the sovereignty of our states to be trampled on,” Florida Attorney General Bill McCollum said. “I will pursue this litigation to the highest court if necessary.”
Louisiana Attorney General James “Butch” Caldwell is the only Democrat joining the lawsuit. The others represent Alabama, Colorado, Idaho, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington state.
Virginia’s Republican attorney general, Ken Cuccinelli, filed a separate suit.
Several noted law professors said there are significant legal hurdles in establishing the states’ standing to challenge the health care law and in convincing federal judges that it violates the Constitution.

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Congress is empowered by the Constitution to regulate interstate commerce. Some opponents of the new law argue that Congress’ mandate that individuals must purchase insurance from private vendors is unprecedented, because uninsured individuals aren’t participating in commerce. Many constitutional law experts, however, said that the health insurance mandate is clearly within Congress’ reach under the Constitution.
“It would be surprising if the (Supreme Court) says Congress can’t regulate people who are participating in the $1 trillion health care market,” said David Freeman Engstrom, a Stanford University Law School professor. “The lawsuit probably doesn’t have legs both as a matter of precedent and as a matter of common sense.”
Sanford Levinson, a University of Texas Law School professor, said that Americans who choose not to purchase health insurance can pay a fine under the new law. Congress, he said, clearly has the authority to levy taxes and fines.
“As a technical matter, it’s been set up as a tax,” Levinson said of the penalties under the health care law. “The argument about constitutionality is, if not frivolous, close to it,” he said.
“You’d have to imagine that the five conservative Republicans on the Supreme Court will be willing to invalidate the most important piece of social legislation in 50 years on the basis of a highly tendentious and controversial reading of the Constitution.”
Randy Barnett, a Georgetown University Law School professor, said that federal judges historically have been reluctant to overturn measures passed by Congress.
“Whenever a congressional statute is being challenged, the smart money is that the courts will uphold the statute,” Barnett said. “So whoever is challenging an act of Congress is always an underdog. The federal courts don’t want to say no to Congress.”
Barnett added, however, that there have been conspicuous exceptions to the rule when the Supreme Court has overruled Congress. In 2000, the high court overturned the 1994 Violence Against Women Act. It invalidated the 1990 Gun Free School Zones Act in 1995. Both decisions were narrow rulings by a 5-4 majority of justices who said the congressional bills violated the commerce clause of the Constitution.
“The question (with the health care measure) will be whether the court will want to give Congress more power under the commerce clause than it has ever given Congress before,” Barnett said.
No Republicans voted for the historic measure to extend health insurance to 32 million Americans when the House of Representatives passed it by a 219-212 vote late Sunday.
McCollum and South Carolina Attorney General Henry McMaster, a leader of the states’ initiative against the health-care law, are both running for governor in their states. McCollum is a former congressman who was involved in the impeachment proceedings against former President Bill Clinton.
Florida Chief Financial Officer Alex Sink, who has a large lead in polls over other Democratic gubernatorial candidates in the state, criticized McCollum’s filing of the lawsuit as a political gimmick.
“Lawsuits and partisanship won’t do anything to help Floridians get better health care,” Sink said. “If Bill McCollum brought the same kind of energy to fighting Medicaid fraud as attorney general, it might not be costing Floridians an estimated $3.2 billion every year.”
McMaster denied that his participation in the lawsuit was politically motivated.
“The key question involved is whether personal freedom, state sovereignty and constitutional law will survive America for future generations,” he said.
(c) 2010, McClatchy-Tribune Information Services.

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