Girding for battle on health reform

Several weeks ago, we discussed the new health care reform law and some of the constitutional challenges that critics have raised. According to an article in The New York Times today, “the case that could carry the most weight” is the lawsuit filed in the Northern District of Florida by the attorneys general of 13 states.

The litigation’s venue is one element on the scale. The plaintiffs apparently chose Pensacola in order to put the case in the path of the conservative 11th U.S. Circuit Court of Appeals while “bypassing a Tallahassee judge who was named by President Bill Clinton.” But the greater threat to the Patient Protection and Affordable Care Act rests on the plaintiffs’ legal arguments, the most potent of which is that the Commerce Clause does not give Congress the power to mandate that all Americans either obtain health insurance coverage or pay a tax penalty. As the Times observes:

Some legal scholars, including some who normally lean to the left, believe the states have identified the law’s weak spot and devised a credible theory for eviscerating it.

The power of their argument lies in questioning whether Congress can regulate inactivity — in this case by levying a tax penalty on those who do not obtain health insurance. If so, they ask, what would theoretically prevent the government from mandating all manner of acts in the national interest, say regular exercise or buying an American car?

Other experts, however, dismiss the Florida lawsuit as a politically motivated lark at taxpayer expense, and argue that the insurance mandate falls comfortably within Supreme Court precedents. The states, they say, may not even withstand a challenge to their standing to bring the suit, since they are only indirectly affected by the mandate.

The Justice Department is expected to move for dismissal of the complaint by the middle of June, and oral arguments have already been scheduled for September 14. Whatever the outcome, chances are the decision will be appealed to the 11th Circuit, from which the next step would be the Supreme Court.

Meanwhile, the issue may make its way into this summer’s Senate confirmation hearings for Supreme Court nominee Elena Kagan. As reported in the Huffington Post and the Swampland blog, among the questions the Republican National Committee plans to ask during the hearings is “Where Does Kagan Stand As Health Care Overhaul Faces Variety Of Legal Challenges?”

posted by vera