Are The Attorneys General’s Constitutional Claims Bogus?


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.

Mark A. Hall, J.D., is the Fred D. & Elizabeth L. Turnage Professor of Law at Wake Forest University School of Law. He is one of the nation’s leading scholars in the areas of health care law and policy and medical and bioethics and a frequent contributor to Health Reform Watch. The author or editor of fifteen books, including Making Medical Spending Decisions (Oxford University Press), and Health Care Law and Ethics (Aspen), he is currently engaged in research in the areas of consumer-driven health care, doctor/patient trust, insurance regulation, and genetics. He has published scholarship in the law reviews at Berkeley, Chicago, Duke, Michigan, Pennsylvania, and Stanford, and his articles have been reprinted in a dozen casebooks and anthologies.

Professor Hall also teaches in the MBA program at the Babcock School and is on the research faculty at Wake Forest’s Medical School. He regularly consults with government officials, foundations and think tanks about health care public policy issues, and was recently awarded the American Society of Law, Medicine and Ethics distinguished teaching award.

7 replies »

  1. So, class, Paolo agrees that this is an unconstitutional bill of attainder.

  2. MD as Hell: You should communicate your brilliant idea to the tea party and sue the states of NY, NJ, ME, VT, and MA. You could get all the “guarantee issue” laws in those states struck down! (bills of attainder are unconstitutional for both the states and the federal government).

  3. But this argument doesn’t apply when liberals try to ignore federal law and legalize weed becuase?
    Uh, I don’t think opponents of the Federal Government in the Raich were predominantly liberal. The Federal Govt’s power to forbid someone from consuming marijuana was upheld mostly by Supreme Court justices considered to be on the “liberal” or “moderate” wings of the court – authored by Stevens, joined Souter, Ginsburg, Breyer, Kennedy, with Scalia writting a separate concurrence. Briefs opposing the Federal Governments power to forbid self-grown pot consumpution were mostly filed by libertarian groups, plus NORML.

  4. But this argument doesn’t apply when liberals try to ignore federal law and legalize weed becuase?