Via the CSM: Attorneys general in 14 states sue to block healthcare reform law
In Tallahassee, Fla., 12 attorneys general joined Florida Attorney General Bill McCollum in a 22-page complaint filed in federal court, charging that the new healthcare reform package exceeds Congress’s powers to regulate commerce, violates 10th Amendment protections of state sovereignty, and imposes an unconstitutional direct tax.
I can’t see this prevailing. Is it not already the case that the federal government of the United States makes all income-earners to pay into (or, technically, purchase) a retirement plan (Social Security) and old-age health insurance (Medicare)? We already have to directly pay for these things via our paychecks each pay period.
Further, it strikes me (and I will readily note it is not an area of research for me, but I do have some passing knowledge on the subject) that the way interpretations of the Commerce Clause (in Article I of the Constitution) has evolved, that it will be sufficient to cover the issues at hand.
Another suit was filed in Virginia:
Virginia filed a similar lawsuit simultaneously in federal court in Richmond. That suit is slightly different in that it focuses in part on the clash between a recently enacted state law protecting the right of Virginia residents to refuse unwanted health insurance and the new federal law that imposes penalties on anyone who seeks to defy the national government’s command to purchase health insurance.
This strikes me at an attempt, straight-up, of nullification, i.e., a state attempting to nullify a federal law it doesn’t like. We settled the question of nullification back in the mid-to-late 1800s (and it was something of a mess, if I recall my history sufficiently). This one is going nowhere.
Yet another suit, filed in Michigan, attempts another approach (at least in part):
In addition to the two state lawsuits, the Thomas More Law Center in Ann Arbor, Mich., filed a lawsuit in Michigan. It is filed on behalf of four individuals in southeastern Michigan who object to being forced to purchase healthcare coverage and who object to being forced to pay for abortions, contrary to their religious beliefs.
In regards to the latter claim (being forced to pay for abortions): without even getting into the debate about whether the bill results in federal funding of abortions, I would note that this is a total non-starter of an argument. That argument, if allowed to stand, would mean that any of us could challenge a law based on our sincere beliefs concerning a given piece of legislation. People have tried this before, and failed (usually in regards to objections to military spending).
All of this, of course, sums to attempts to find an alternative route to take down the policy. They are, within the general scope of out politics, legitimate attempts but also are the equivalent of Hail Mary passes at the end of a football game. Indeed, the more complete analogy would be that there is :30 seconds on the clock and a team is down by 16. It needs a Hail Mary, a two-point conversions, a recovered onside kick, another Hail Mary and another 2PAT and then to win the coin flip to start OT and a score to win. (And even that may be too kind a scenario).
It is ultimately worth noting, by the way, that even if the individual mandate is struck down, the rest of the legislation will remain in force. As such, it is not a silver bullet (to shift metaphors) to slay the health care reform bill.
For what it is worth, at the Volokh Conspiracy, law prof (and opponent of the individual mandate) Orin Kerr wrote: “In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power.” Fellow law prof Jonathan Adler concurred: “were I forced to make a prediction, I would predict that the individual mandate will survive judicial review.”
March 24th, 2024 at 8:50 am
As I wrote yesterday there is a ripeness question. Since the mandate does not become effective until 2024 I do not think the Court will even take it up until then.
March 24th, 2024 at 8:54 am
As to the abortion complaint, I think the law exempts people from the insurance mandate if they have a religous objection. Are there people with a deeply held belief that abortion is wrong, but this belief is not religous? Are there people with a deeply held belief that the insurance mandate is wrong, and thus are they exempt? How big is this hole?
The analogy is that a person may not use their religious beliefs to avoid a general tax used partly to pay for a war, but they can use it to avoid military service. A person cannot be compelled to purchase insurance on religous grounds, but can’t object to the general taxes in the HCR.
March 24th, 2024 at 9:08 am
This is a real possibility.
March 24th, 2024 at 9:21 am
One would think, however, that it is possible to buy coverage that does not include abortion coverage, yes? I may be mistaken, but I didn’t think that there was a blanket exemption from the mandate based on abortion. Indeed, I thought part of the compromise was to force people who wanted abortion coverage to have to buy it on their own so that none of the federal funds would go towards purchasing policies (via the subsidies) that would cover abortions.
March 24th, 2024 at 11:03 am
Maybe next I’ll be able to get a court to declare the military unconstitutional becuase it violates my religious beliefs, and I have to pay for it.
Not that I actually want this, but it illustrates how absurd the claim is.
March 24th, 2024 at 12:16 pm
The way I’ve heard the case being argued is that it MIGHT be unconstitutional if the Congress was penalizing uninsured via the criminal system. Instead, they are using their powers to tax (or not to tax). You are still free to be uninsured, but you will pay more in taxes– just as you are not forced to have kids just because you get pay less for dependents.
The Medicare/Social Security argument might be flawed in that those are not privately owned.
Now, upon reading the language, it’s hard to tell for certain, but it appears that they went about this by basically offering a deduction for being sufficiently insured, and that’s how you’d pay roughly 2% more if you were uninsured. And as we all know, there are all sorts of things you can purchase on the private market that will give you a tax deduction. Not only is that constitutional, but it’s also quite commonplace.
Regarding the abortion thing… The language I read required that plans offer “reproductive services” if they were offered through the exchange which should be created by 2024. The typical definition of that is for things like maternity coverage, contraceptives, OB/GYN visits, etc., but it does have a rather wide definition that’s probably going to have to be clarified later on. I didn’t see a requirement that you actually had to purchase a plan with abortion coverage, but I’d imagine that it’s possible to purchase a plan with or without it. It’s required, however, that abortion coverage extending beyond the usual three exceptions be paid for out of pocket rather than with federal subsidies. (Coverage for things like terminating a tubal pregnancy would still be covered, as that is a situation where the baby cannot be carried to term, and the mother would die.)
March 24th, 2024 at 12:54 pm
On the mandatory contracting objections, this strikes me as a really odd tactic for representatives of the right to advance. The obvious solution, if “forced” contracting with a private party is constitutionally objectionable, is to have a public option! We have all sorts of mandatory contracting with public agencies as a matter of obligations as citizens.
One could imagine a court (no, not this Supreme Court, just a court in the abstract) agreeing with the plaintiffs and ordering Congress to come up with a public agency to mitigate the constitutional problem!
Now that would be fun…
(As already noted in the thread, the objection won’t fly because citizens actually will be free to opt out, but will then be hit with a penalty tax. Given the broad taxing powers of the Congress, it is highly unlikely that there is anything unconstitutional about that provision.)
March 25th, 2024 at 1:53 am
Although I would like the 10th Amendment, the Interstate Commerce Clause and the General Welfare Clause to be interpreted in such a way as to make this kind of thing unconstitutional I have to agree that the lawsuits are very likely to lose.
However:
We were told — repeatedly — that the individual mandate is a fundamental part of making things work. If healthy people opt out of insurance it will mess up the risk pools and everything will come to a crashing halt. I don’t think the mandate will actually accomplish that, but according to the bill’s sponsors the bill is doomed to failure without the mandate.
March 25th, 2024 at 6:23 am
I agree that the individual mandate is a central (indeed, foundational) element to the program. And if it were struck down it would have important implications. However, my point was simply that having the individual mandate struck down would not amount to repeal of the program. As such, there lawsuits, even if successful (which we agree is unlikely) wouldn’t be a method of reversing the legislation.
March 25th, 2024 at 8:50 am
There’s a very simple solution if that particular “mandate” is struck down. They simply just have to pass a separate tax increase and then make insurance plans tax deductible to neutralize that increase.