Opinion: It’s on! 13 state attorneys general challenge healthcare reform law


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The gears of justice may turn slowly on the average day, but apply some political grease and the machinery springs to life. Tuesday morning the attorneys general in 13 states, led by former Republican congressman Bill McCollum in Florida, filed suit in Pensacola seeking to block implementation of two central pieces of the healthcare reform bill that President Obama just signed into law.

In particular, the AGs’ complaint alleges that Congress violated Article I of the Constitution and the 10th Amendment by requiring all Americans to obtain insurance coverage and by enforcing the mandate with tax penalties (a maneuver that, the AGs say, violates the constitutional ban on direct taxes). It also contends that the expansion of Medicaid violates the 10th Amendment by turning a voluntary partnership into a ‘compulsory, top-down federal program in which the discretion of the plaintiffs and their sister states is removed.’ The law, it says, turned Medicaid into a bait-and-switch, trapping states in a program they can’t control or afford.


Finally, it argues the law contains unfunded mandates, particularly in the creation of state insurance exchanges for individuals and small groups to shop for policies. Those unfunded mandates violate state sovereignty under Article IV of the Constitution, the lawsuit contends.

The complaint asks the court to declare the entire law invalid.

I’m not a constitutional lawyer, so I’m not going to try to predict the chances of success here. Instead, I’ll just point once again to Tim Noah’s piece from Slate last year that explored the legality of the mandate. He concludes that it’s constitutional, but his piece suggests it’s no slam dunk. On the other hand, an Op-Ed by Edwin Chemerinsky, dean of the UC Irvine Law School (and noted liberal), in the Los Angeles Times claimed that the House and Senate reform bills were ‘unquestionably’ constitutional.

If any of you readers are constitutional scholars, I’d love to hear your take on the specific issues the suit raises. If you’re only pretending to be a constitutional scholar, please be clear about that too.

And just for the record, one of the AGs joining McCollum’s lawsuit was a Democrat, albeit from Louisiana, where the partisan lines are defined a bit differently than they are in many other states. Perhaps the six other GOP attorneys general around the country are working on a lawsuit of their own.

Updated, 3:40 p.m.: In fact, at least one of them was. Virginia’s Republican attorney general filed a separate suit this afternoon in U.S. District Court in Richmond. The lawsuit argues that the individual mandate is an unconstitutional ‘citizen to citizen subsidy or redistribution’ in violation of Congress’ enumerated powers under the Commerce Clause.

Updated, 5:54 p.m.: There’s been an excellent discussion of the issue over at the Volokh Conspiracy, which defies ideological characterization. On Monday David Kopel argued that Congress overstepped its bounds, while Orin Kerr said the chances of the mandate being upheld were close to 100%. Today, Jonathan Adler was more iffy, although he generally agreed with Kerr.

-- Jon Healey