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by Vault Law Editors | March 29, 2010


As lawyers go to battle over the new health care law, it’s not only federal-state powers that are being questioned but also intra-state authority. As noted in a post on Legal Blog Watch, “internal political rifts [are] muddying the waters in at least a couple of states as to whether they wish to participate in the challenge [to the legislation]. In Nevada, the attorney general is resisting the governor’s demands to hop on the bandwagon. And in Michigan, vice versa.”

Meanwhile, Ohio’s attorney general, Richard Cordray, declined to join the lawsuit filed in Florida by 13 state attorneys general, declaring that it is likely to be dismissed: “It would require tearing up decades of contrary precedent.”

Not everyone agrees. The New York Times asked four constitutional scholars (from Yale, Georgetown, Columbia and Vanderbilt) and two Baker & Hostetler partners (counsel for the AG plaintiffs in Florida) to address the constitutionality of the requirement that all Americans obtain health insurance coverage (the so-called individual mandate) and whether the courts are likely to strike down the legislation. Summaries of their arguments below:

Jack M. Balkin, Yale Law School: The mandate is no more than a tax that promotes the general welfare by making health care more accessible and affordable. The Constitution clearly gives Congress power to tax and spend for the general welfare. “Opponents of the individual mandate … are really claiming that it is unconstitutional to make Americans pay taxes.”

Randy Barnett, Georgetown Law School: The mandate is over-reaching and unprecedented. “Congress has never before mandated that a citizen enter into an economic transaction with a private company,” and the Supreme Court will not uphold a tax that penalizes “private citizens who refuse to enter into a contract with a private company.”

Abbe R. Gluck, Columbia Law School: With respect to 10th Amendment objections that the federal government cannot force states to expand their Medicaid programs, “The key fact here is that states do not have to participate in Medicaid at all. … So, if the suing states are so opposed to the Medicaid expansion in the health reform law, they can simply drop the program entirely.”

David B. Rivkin and Lee A. Casey, counsel in the Florida lawsuit: The mandate is “in no way necessary” for Congress’ regulation of insurance markets.  “The mandate is, in fact, a quintessential ‘police power’ exercise — a law requiring or forbidding individual action enacted simply because lawmakers consider the measure to be in the public interest.”

James F. Blumstein, Vanderbilt Law School: The individual mandate is a “necessary and proper” exercise of Congressional authority under the Commerce Clause. If states don’t like the new Medicaid conditions, they can drop out of the program. “Without Medicaid, former beneficiaries would be eligible for federal subsidies on the new health care exchanges, so they would be able to obtain health coverage at federal cost.”

- posted by vera


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