Legal Challenges to ObamaCare Continue

The Washington Post has an update on Virginia AG Ken Cuccinelli's case against the new health care law:

Attorney General Ken Cuccinelli (R) defended his suit against the federal health care law in a call with reporters this evening, a call designed to accompany today's filing in the case. Over the course of the call, he walked through the legal arguments of his brief, arguing Virginia has standing to sue and that the constitution's commerce clause does not give the Congress the ability to mandate that individuals buy health insurance.

"A lot of people who think we're going to lose the case essentially boil down their expectation to, 'well, the federal government always wins these things.' And that's not necessarily true," Cuccinelli said, citing two major cases over the last 15 years in which the Supreme Court has set limits on the power of Congress under the Commerce clause.

A number of libertarian-leaning legal experts have told me that although they believe the legal argument against ObamaCare is strong, they recognize that the various challenges face an uphill battle in the courts. But since that report, I think the chances that a challenge will succeed have improved somewhat (though the odds are probably still against success). You can judge the merits for yourself: Cato's Ilya Shapiro recently debated the issue against constitutional law professor Stewart Jay. As far as I'm concerned, Shapiro was the clear winner.

Comments

[James Ard]

Has anyone done a thorough study of Justice Kennedy's jurisprudence on the commerce clause? It's likely he'll be the swing vote, as usual.

[P Brooks]

The claim that Virginia has no standing to sue seems utterly preposterous.

[R C Dean]

If the federal government is empowered to require you to buy a product or service from a private company, when that product or service is, by law, only offered intrastate:

Just exactly what is not within its Commerce Clause powers?

[Episiarch]

Now you're getting it, RC!

[Commerce Clause]

Just exactly what is not within its Commerce Clause powers?

Nothing. I rule.

[Supremacy Clause]

O RLY?

[TrickyVic]

Didn't the new law end the only offered intrastate part?

[Cunctator]

What I don't understand is that while we are prohibited from buying health insurance acrossed state lines, somehow my not buying health insurance within my state, per the new laws, is in some way interfering with interstate commerce.

[Cunctator]

What I don't understand is that while we are prohibited from buying health insurance acrossed state lines, somehow my not buying health insurance within my state is interfering with interstate commerce.

[Justice Kennedy]

Just remember who owns this mofo, bitches!

[Susette Kelo]

Certainly not me. Asshole.

[Tolly]

Please let this turn out to be an overturn of the federal bill of goods that sounds more and more false with every new report.
Do any of these debates address what happens when/if the law is overturned? Will it go back to the houses for rewriting or would it be dead and gone?

[Nick]

I have a feeling it would just eliminate the mandate part and it's accordant fines for not purchasing insurance. Nevermind that it renders every calculation bogus...and then profits! Or something.

[cap]

It goes - they did not include a severability clause that requires that if any piece is determined unconstitutional then the rest stands.

[Tolly]

Wouldn't that be nice.
I really can't believe that as the news on deficit grows worse and worse, people in government still think it's acceptable to shove these huge programs through in record time and shrug when the rosy budgets shrink away to huge losses.
I mean I *can* believe it, but I thought this administration was going to be a hopeful, change, etc. etc.

[Tonio]

The courts can overturn all or part of a law.

Once a law (or part thereof) is overturned, Congress can pass new legislation (or not), but there's no automatic sending back for a rewrite.

[Attorney]

The fact that Charles Fried (a high-profile conservative in legal circles) came down strongly on the "it's constitutional" side really gave me pause. Either he's senile or he knows which way the wind is blowing.

[R C Dean]

Do you recall what his argument was?

It seems to me that the best argument is that this isn't really a Commerce Clause "regulation" at all, but merely a tax. Judges and legal scholars are peculiarly vulnerable to that kind of form-over-substance thinking.

[James Ard]

I read a while back in the wsj that the Obamabots were making a mistake in changing the talking point to the idea that it is a tax. The writer thought it would be even harder for the mandate to pass constitutional muster because a tax has to be called a tax, or something like that.

[James Ard]

Here's the piece: http://online.wsj.com/article/.....57916.html

[Attorney]

Hier.

I can't bring myself to read it again.

[T]

Mildly on-topic: it dawned on me yesterday I went to junior high with Cuccinelli and his brother. This makes him the only semi-famous person I knew in school.

Anyhow, return to your regular topic.

[wylie]

'well, the federal government always wins these things.'

I don't know where to start. A nice brisk "WTF IS WRONG WITH YOU PEOPLE"? Or maybe I'll just go in a corner and cry for the death of the american spirit.

[SugarFree]

Depressing prediction for the day: The mandate will be the only part they strike out. Thus giving cover to Obama & Co. to blame those darn courts for any failures.

[P Brooks]

Thus giving cover to Obama & Co. to blame those darn courts for any failures.

"Activist" Courts; because the plain language of the Constitution is clearly in favor of nationalized production of goods and services.

[Vern]

I think Shaprio missed the point about the "premium spiral." Shapiro took it as a policy point, rather than a judicial concern. The point Jay made was that Scalia had argued that a policy or provision that might be unconstitutional on it's own (such as banning personal growing of Marijuana) CAN be constitution in the context of some broader program that IS constitutional such as the drug war (sure, I don't think the broader drug war is constitutional either, but that's not relevant).

The logic is:
1. the broader Heath Insurance reform and regulation initiative does pass constitutional muster, for the same reasons that SS and Medicare do.
2. due to the premium spiral, the individual mandate is thus a specific and essential part of that overall broader reform program.
3. the mandate which would NOT be constitutional as a solo program, now IS constitutional as long as it remains part of this broader program of regulation that does pass muster.

That seems consistent with Scalia's logic in the marijuana case. I always thought Scalia made no sense in that case, but if he holds to that thinking, the mandate passes muster.

[Tulpa]

Well, the "necessary and proper clause" would seem to support that form of reasoning. However, I would disagree with the premise in (1) -- I don't see where SS and Medicare are constitutional.

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