Are The Attorneys General’s Constitutional Claims Bogus?

6a00d8341c909d53ef012876544c5e970c-320wi Immediately after passage of health care reform, over a dozen state A.G.s sued to declare it unconstitutional, as violating states’ rights. The Florida complaint is here, and Virginia’s here. Reminiscent of southern governors in the 1960s blocking their state universities’ gates, these legal officers in effect are saying “not on our sovereign soil.” Since the constitutional issues have already been hashed through so thoroughly, what’s new to talk about?

First, the Florida complaint, which a dozen other states joined (AL, CO, ID, LA, MI, NE, PA,SC, SD, TX, UT, WA), focuses mainly on the financial burdens of expanding Medicaid. This is challenged under the “commandeering” principle, as requiring states to devote sovereign resources to achieve federal aims. But, as we know, states are free to withdraw from Medicaid, so the argument seems to fall entirely flat. The complaint makes a bait-and-switch type of estoppel argument , that states got into Medicaid without any expectation of this expansion, and now it’s too damaging for them to withdraw. So, in effect, states argue that the Constitution allows them to keep the federal carrot but refuse the federal stick. Good luck selling that to an appellate court.Second, these states complain about having to implement the insurance purchasing exchanges and their rules, but here again, states are entirely free to opt out and let their citizens use the federal exchange. The only reason states have to implement exchanges is that they insisted the legislation give them this option, rather than forcing everyone into a single national exchange. States can hardly complain about the responsibilities they asked for, especially when they’re still free to duck them.

Third, there are procedural problems. States probably have no standing to enforce arguments about violation of individual rights (which is the main concern regarding the individual mandate). Also, consider the remedy if states were to prevail: It would wreak havoc to overturn the mandate to purchase, but not the mandate for insurers to sell without any medical underwriting. Doing that would cause massive adverse selection and probably destroy some companies and some portions of the market, so a court would have little option but to strike down most or all of the entire law. Surely that measure is extreme enough to give even the most activist judge pause, and so will compel most courts to find every possible way to uphold constitutionality, regardless of political persuasion.

Finally, do state nullification statutes like Virginia’s make a difference? Not according to Harvard’s Charles Fried (who was Reagan’s Solicitor General):

The notion that a state can just choose to opt out is just preposterous…. As long as the federal law is independently constitutional, it doesn’t matter what Virginia says… It’s like Virginia saying we don’t have to pay income tax….One is left speechless by the absurdity of it.

This leaves only the well-worn arguments about exceeding powers to regulate commerce and to tax for the general welfare. On these, most legal scholars are loud and clear about the merits. In sum, as Sandy Levinson’s (Univ. Texas) says, “The argument about constitutionality is, if not frivolous, close to it.”

Previously by this author on THCB: “Is It Unconstitutional to Mandate Health Insurance?

Originally posted at the O’Neill Institute for National and Global Health, Legal Issues in Health Reform and Health Reform Watch, a publication of the Seton Hall School of Law.

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Henry MassingaleDemocracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John AdamsObama Does Not Want Obama CarePaoloMD as HELL Recent comment authors
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Henry Massingale
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In and before The U.S. Supreme Court Justices Court and In and before The People Of The United States Of America. I am sorry but this Bill to Law needs to go back to formula. Somehow there is just to many people that do not understand the function of the Governing Bodies within Government. First, there are around 60 Personal that hold seats that write these Laws, both Democrat and Republican. Then this Bill for Law goes up for a vote and there is around 500 or so Republican and Democrats that vote. The sling talk of this of being… Read more »

Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams
Guest
Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams

How would the national government compel the state governments to enforce the law? Withhold funds from the state? Threaten officials with jail-time? At the end of the day, a state could simply say “No thank you.”. The legislation is only effective if it can be enforced. Assuming the judicial branch of government rules against the plaintiffs (A.G.s), what happens should the states refuse to enforce or actively hinder the provisions of the legislation? It sounds far-fetched, but a growing population of some of the states listed (including the officials of the mentioned states) believe that the Federal government is exceeding… Read more »

Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams
Guest
Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams

How would the national government compel the state governments to enforce the law? Withhold funds from the state? Threaten officials with jail-time? At the end of the day, a state could simply say “No thank you.”. The legislation is only effective if it can be enforced. Assuming the judicial branch of government rules against the plaintiffs (A.G.s), what happens should the states refuse to enforce or actively hinder the provisions of the legislation? It sounds far-fetched, but a growing population of some of the states listed (including the officials of the mentioned states) believe that the Federal government is exceeding… Read more »

Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams
Guest
Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams

How would the national government compel the state governments to enforce the law? Withhold funds from the state? Threaten officials with jail-time? At the end of the day, a state could simply say “No thank you.”. The legislation is only effective if it can be enforced. Assuming the judicial branch of government rules against the plaintiffs (A.G.s), what happens should the states refuse to enforce or actively hinder the provisions of the legislation? It sounds far-fetched, but a growing population of some of the states listed (including the officials of the mentioned states) believe that the Federal government is exceeding… Read more »

Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams
Guest
Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams

How would the national government compel the state governments to enforce the law? Withhold funds from the state? Threaten officials with jail-time? At the end of the day, a state could simply say “No thank you.”. The legislation is only effective if it can be enforced. Assuming the judicial branch of government rules against the plaintiffs (A.G.s), what happens should the states refuse to enforce or actively hinder the provisions of the legislation? It sounds far-fetched, but a growing population of some of the states listed (including the officials of the mentioned states) believe that the Federal government is exceeding… Read more »

Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams
Guest
Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams

How would the national government compel the state governments to enforce the law? Withhold funds from the state? Threaten officials with jail-time? At the end of the day, a state could simply say “No thank you.”. The legislation is only effective if it can be enforced. Assuming the judicial branch of government rules against the plaintiffs (A.G.s), what happens should the states refuse to enforce or actively hinder the provisions of the legislation? It sounds far-fetched, but a growing population of some of the states listed (including the officials of the mentioned states) believe that the Federal government is exceeding… Read more »

Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams
Guest
Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams

How would the national government compel the state governments to enforce the law? Withhold funds from the state? Threaten officials with jail-time? At the end of the day, a state could simply say “No thank you.”. The legislation is only effective if it can be enforced. Assuming the judicial branch of government rules against the plaintiffs (A.G.s), what happens should the states refuse to enforce or actively hinder the provisions of the legislation? It sounds far-fetched, but a growing population of some of the states listed (including the officials of the mentioned states) believe that the Federal government is exceeding… Read more »

Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams
Guest
Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams

How would the national government compel the state governments to enforce the law? Withhold funds from the state? Threaten officials with jail-time? At the end of the day, a state could simply say “No thank you.”. The legislation is only effective if it can be enforced. Assuming the judicial branch of government rules against the plaintiffs (A.G.s), what happens should the states refuse to enforce or actively hinder the provisions of the legislation? It sounds far-fetched, but a growing population of some of the states listed (including the officials of the mentioned states) believe that the Federal government is exceeding… Read more »

Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams
Guest
Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams

How would the national government compel the state governments to enforce the law? Withhold funds from the state? Threaten officials with jail-time? At the end of the day, a state could simply say “No thank you.”. The legislation is only effective if it can be enforced. Assuming the judicial branch of government rules against the plaintiffs (A.G.s), what happens should the states refuse to enforce or actively hinder the provisions of the legislation? It sounds far-fetched, but a growing population of some of the states listed (including the officials of the mentioned states) believe that the Federal government is exceeding… Read more »

Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams
Guest
Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams

How would the national government compel the state governments to enforce the law? Withhold funds from the state? Threaten officials with jail-time? At the end of the day, a state could simply say “No thank you.”. The legislation is only effective if it can be enforced. Assuming the judicial branch of government rules against the plaintiffs (A.G.s), what happens should the states refuse to enforce or actively hinder the provisions of the legislation? It sounds far-fetched, but a growing population of some of the states listed (including the officials of the mentioned states) believe that the Federal government is exceeding… Read more »

Obama Does Not Want Obama Care
Guest

For those that think this bill is so great, why is it that the president as well as Pelosi aren’t covered with it? Why are all the people that have pushed it the hardest exempt from its mandates? Well read about it at Obama Does Not Want Obama Care

MD as HELL
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MD as HELL

Right you are. My mistake. It is , however, a bill of attainder, which is not allowed.

Paolo
Guest
Paolo

MD as HELL: you read the wrong part of the US Constitution. Article 1, sec 10 limits the powers of State governments, not those of the federal government.
Your statement that Congress cannot restrict the right of contract does not appear anywhere in the US Constitution.

MD as HELL
Guest
MD as HELL

Article 1, sec. 10. Congress shall pass no law restricting the right of contract. This means there is no power to force inclusion of pre-existing conditions. This means the law is unconstitutional.
Duh!

Margalit Gur-Arie
Guest

OMG, THCB is back from the dead….
Now we need J.C. Calhoun resurrected to resume his fight for nullification rights…..