Constitutional Law

There Are Now 27 States Challenging the Constitutionality of ObamaCare

|

The House voted to repeal the health care overhaul yesterday in a move that was, as The Wall Street Journal says, symbolic but not entirely meaningless. Ultimately, though, it's unlikely to result in any direct, substantive changes to the law. Thanks to the White House's veto power, Congress won't be able to repeal the law before the next election.

But that doesn't mean it's safe. Court challenges present a real threat to its continued existence.

That's why it's worth noting that on the same day the House voted to repeal the law, six additional states joined the ongoing multi-state lawsuit against the health care overhaul:

Ohio, Wisconsin, Iowa, Kansas, Wyoming and Maine won permission to join a Florida lawsuit challenging the constitutionality of President Barack Obama's health-care reform legislation.

U.S. District Judge Roger Vinson in Pensacola, Florida, yesterday granted the states' motion for permission to be added to the lawsuit filed last year by then-Florida Attorney General Bill McCollom, bringing the total of plaintiff states to 26.

With Virginia, which is involved in a separate suit, this brings the total number of states challenging the federal overhaul to 27.

I'm not convinced that the legal challenges have a better than 50-50 shot to prevail, but they do have some chance. Meanwhile, the courts are likely to at least be aware of the size of the opposition to the law: More than half the state governments have taken legal action against it. More of the public disapproves of the law than approves of it. And a majority in one chamber of congress has voted to repeal it. 

NEXT: Reason Writers on Bloggingheads: Matt Welch Discusses ObamaCare, Regulation, and Tiger-Mother Parenting with Slate's Timothy Noah

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Meanwhile, the courts are likely to at least be aware of the size of the opposition to the law: More than half the state governments have taken legal action it. More of the public disapproves of the law than approves of it. And a majority in one chamber of congress has voted to repeal it.

    But people and states don’t like it only because it does not do enough… Uh, at least, that is what Pelosi said.

  2. Now if the Senate were appointed by state legislatures, as before the 17th Amendment, giving the state governments a say in federal affairs, the House repeal bill would pass the Senate and perhaps override a presidential veto.

    1. Sure, let’s just draaaaaaaaaaaag the country backward. That’s like, over 100 years ago, or something. I suppose we should reinstitute slavery and deny women the vote as well.

      Also, ROADZ!! SOMALIA!!! TEH CHILDRUN!! EVUL CORPORASHUNZZS!!!!!

      I believe that is all. Thank you.

      1. No…thank YOU.

      2. We’re not crazy revolutionaries.

        First, we repeal the 17th Amendment.

        THEN, we deny women the vote.

        And only after THAT do we reinstute slavery.

        Speaking of which, my taxes are done, and I am paying well above the median family income in federal income taxes. Seems like that should get me a couple of federales to do chores around the house, at a minimum, no?

    2. The bill only got 56% in the House. A lot of the “swing” Democrat votes — e.g. the Stupak Democrats — lost their seats in the last election. We can look forward to the current group of Democrats being even more intransigent and delusional than the last group.

      1. If the 17th had never passed it is likely we wouldn’t be having this conversation anyway.

    3. This is exactly right.

      MORE THAN HALF of the state governments don’t like it.

      Isn’t this what the whole concept of federalism supposed to be about?

      Fuck these statists and their authoritarian national government.

    4. Even if the 17th Amendment were repealed today, it would take 2 years before any Senators would take office having been appointed by state legislatures. It would take 6 years before the entire Senate was replaced. The issues on the table, and the parties controlling the legislatures, could change significantly between now and then. Besides, repealing the 17th amendment is about as likely as repealing any other–almost impossible.

  3. They should prevail, even with all of the bad precedent created by the courts in regards to expanding government power. Doesn’t mean they will, but the legal arguments are sound.

  4. More than Almost half of the 57 state governments have taken legal action [need a word here – “against?”] it.

    FIFY

    1. Has American Samoa taken a position?

  5. The question you ultimately have to ask is, which 5 justices can be convinced the Feds have the Constitutional authority to compel people to buy a product they don’t want?

    My thought is the conservative wing isn’t going to buy it at all and Kennedy is a long shot….

    1. It largely depends on how the question is presented – or, more importantly – how the parties manage to convince the SCOTUS to phrase the question.

      E.g., take a look at Bowers v. Hardwick and then Lawrence v. Texas. The cases were decided pretty much based on how the liberty interest at stake was defined.

      So is the question “does Congress have the Constitutional authority to compel people to buy a product they don’t want?”

      Or is it, “can Congress enact reasonable regulation affecting individual choices which, when taken in the aggregate, can have an affect on regulated interstate commerce?”

      This is the kind of bullshit nonsense the justices play with to help them reach the desired answer.

      1. I think the difference between Lawrence v. Texas and Bowers v. Hardwick had more to do with the fact that, in the 17 years between the two cases, 6 of the 9 justices were replaced.

        1. That absolutely is true also.

          Just pointing out all the discussion of what was the actual question presented – it is notable and interesting to see how Scalia frames it versus the other opinions.

          Scalia says there is no constitutional right to eff another guy in the a or have another guy eff you in the a. And, framed in that way, I supposed I’d have to agree with him – I don’t see where there is a right guaranteed in the Constitution for Steve to have Bob give him head.

          But when framed as a facet of a larger right to privacy encompassed by the penumbras cast by emanations from the other enumerated rights, and combined with the 9th Amendment, and general principles of individual liberty, I’d have to side with teh gay secks between consenting adults being something the state can’t prohibit.

  6. The most interesting stat would be how many sitting senators who voted for Obamacare hail from states suing to have it overturned–and then how many of those up for re-election in 2012.

    I can certainly see a Jim Webb switching sides. It is easy to justify a switch by pointing out that (a) at least one court has ruled it unconstituional, so we face years of litigation that will only hurt the economy, (b) with only 8,000 people signed up for care in the program to take care of those with pre-existing conditions, but at much more cost per head than originally thought, maybe the CBO projections were off, and (c) the central promise that people could keep the insurance they have being disproved by the elimination of child only policies and the hundreds of waivers issued thus far. Any Dem who wants to switch only needs to say that we need to re-think this thing, and promise to get right on it.

  7. It’s almost Licolnesque.

  8. the courts are likely to at least be aware of the size of the opposition to the law

    Nuh uh. Polls indicate that fully half of all Americans who participate in polls support the Family Safety, Security and Redistribution of Health Act, and the favorables are trending upward. By the end of 2011, say Democrat strategists, the overwhelming majority of Americans who participate in polls will support the FSSRHA.

    1. Yes! The problem was that they were just polling the wrong people! Easy fix!

      1. We derive our morality from polls. What could be more fair?

  9. Finally, Ohio shows some sense. Probably because of the elections.

    1. From Ohio: Voinovich deep-sixed conservatism in his last 2 years, and S. Brown is rated 100 out of 100 by Club for Growth (i.e. Brown is ANTI-BUSINESS).

      Portman replaces Voinovich (great move for conservatism), and S. Brown is up for re-election in 2010. Every last conservative in Ohio will be campaigning against one of the chief spenders of our tax money to buy votes – Sherrod Brown.

      Brown’s newsletters have already touted the “benefits” of the monstrous bill he helped create.

  10. My fear is that the supreme court will say that government has this power to create a mandate under the commerce clause and then all restraints are off of the federal government.

    1. A government that can force you to buy health insurance, is a government that can force you to buy gay male prostitutes.

      1. And much like health insurance, it’s really only a matter of time before everyone will require the services of a gay male prostitute.

    2. As a straight man I must say that I would rather have a gay male prostitute forced on me than Obamacare, at least then no one could pretend that I am not being screwed.

      1. Bottom or top?

        They’ll need to check off the right box on the form, you see.

        1. Don’t be silly, the commerce clause will be invoked to ensure that I won’t have a choice.

  11. I’ve already heard some Congresscritters using the ongoing litigation as an excuse for not being more aggressive in trying to undo the bill. “We should let the courts sort it” kind of a deal.

    So there’s always a downside.

  12. Only 8 states away from calling for a constitutional convention. Between the unpaid for mandate that is Obamacare, the tyrannical behavior of the EPA, and complete disregard for the 10th Amendment the States may well start to flex their power. The Supremes are just as complicit in the destruction of federalism as Congress and the Executive, so a muzzle on all of their powers is an idea whose time has come.

    1. 7. 35 is greater than 2/3rds of 50.

      1. 34 is greater than…

        1. And 33 is less than…

  13. “No matter whether the country follows the flag or not, the Supreme Court follows the election returns.” Finley Peter Dunne.

    There is hope for us loathers of Obamacare yet, ladies and gentlemen.

  14. I wonder if Obama can be repealed??

  15. I’m holding out hope that making a point of embarrassing the SC justices on National TV will come back to haunt the “One”.

  16. Glad to see Maine joined the suit. Did you see where our new tea party governor, Paul LaPage, told some critics they could “kiss my butt”.

  17. Getting pretty close to the 2/3 of all states suggested by the Repeal Amendment. The idea seemed fairly far fetched when proposed but now it seems quite reasonable.

  18. We haven’t done a good job of selling the bill. That is the real problem, not the bill itself. The Republicans have lied and the American public believed them because it isn’t very perceptive.

  19. Those damn rat fuck Republicans.

  20. 27 down, 30 to go.

  21. With 7 more states, a constitutional convention could be called.

  22. “CNN is so boring, dust falls out of their mouth”, Bill O’Reilly, a few seconds ago on his show, talking about liberal media reaction to repub efforts to repeal the Obama’s health care law.

  23. We can assume many things about ObamaCare, but it will be years until we know its true impact. For example, history has shown that Medicare was woefully under-estimated and helped usher in the destruction of the healthcare system. This was not the intent nor fully known during the LBJ administration. ObamaCare will help speed this along. Welcome to our new reality.

    Take the emotion out of the argument and simplify it, and please don’t use statistics that have been proven to be numerically meaningless and shown to be unfair comparasions. The left seems very good at throwing out these types of figures for an emotional response, but they are false, misleading arguments.

    One positive from our entitlement quagmire: many state governments are quietly starting to look at the bankruptcy option. Good option since they can’t just print more money like the federal goverment.

  24. I don’t get it. All the talk about the Government not having the authority to force people to buy something. WHAT ABOUT THE FACT THAT YOU ARE REQUIRED TO BUY CAR INSURANCE?
    Sure, you have a mythical “option” not to drive, but really, how realistic is that for most of us?
    The precedent is set. Grow up.

    1. At the state level.

  25. It doesn’t matter if the lawsuit prevails or not. If it doesn’t this will be a perfect opportunity for the states to use nullification. We simply need state electorates that are willing to hold the legislature/governors feet to the fire.

    http://confederateunderground……s-for.html

  26. Why does every industrialized nation in the world have some form of universal health care, EXCEPT the U.S?
    Somehow, every other industrialized nation can afford to give their citizens affordable health care, but here, it generates outrage amongst the ‘patriots’ on the right.
    If these so-called politicians genuinely cared about their constituents, they would find a way to bring about a system like the rest of the world enjoys.
    It is clear by their actions who these republicans truly represent.

  27. Having once lived in a country with probably the best governmental health system in the world (Australia), for the life of me I cannot understand why Americans seem so opposed to a guaranteed basic standard of health care for all. The Australian system works. It is funded by a rather insignificant levy on income tax. You get sick in Australia and go to a public hospital, you will get excellent care, no matter how poor you are. Those with private insurance can get perks like private hospitals and their choice of specialists. Regardless, even the poorest get cared for. Anything else is not a fair society. To us in Australia, the UK and all of Europe, opposition to health reform in the US just looks nuts.

    1. So it’s just like here then.

Please to post comments

Comments are closed.