Consumer Law

Constitutional Challenges to Health Care Reform: Florida, et al. v. HHS and Virginia v. Sebelius

By Deepak Gupta

by Deepak Gupta

A few minutes after the President signed the Patient Protection and Affordable Care Act today, Virginia Solicitor General Duncan Getchell left his office and walked across the street to the federal courthouse in Richmond, where he filed Virginia's constitutional challenge to the new law. 

You can read the seven-page complaint in Virginia v. Sebelius here. It's not a model of legal writing, but it does have the virtue of being concise. It begins with a block quote from a hastily passed state statute affirming the right of all Virginians to choose not to maintain health insurance coverage. Unless I'm missing something, that statute is nothing more than a legally irrelevant political stunt.  The complaint goes on, however, to articulate what I take to be the only serious legal challenge to health care reform -- that the individual insurance mandate goes beyond Congress's Commerce Clause power.  Relying on United States v. Lopez and United States v. Morrison, Virginia appeals to history:

?It has never been held that the Commerce Clause ? can be used to require citizens to buy goods and services. To depart from that history to permit the national government to require the purchase of goods and services would deprive the Commerce Clause of any effective limits ..."

This argument has some rhetorical force. It's also rooted in a radical conception of individual liberty that one can imagine attracting some judges -- why should I have to buy insurance simply as a condition of being alive? I'd prefer to live in a cabin and avoid any obligations to society -- but it's hard to square with existing law. In particular, it's difficult to reconcile the  argument with Gonzalez v. Raich. As with marijuana, individuals' decision to purchase health insurance can have a ?substantial effect on supply and demand in the national market for that commodity.? Even smart libertarians agree that the argument is exceedingly unlikely to succeed.

Down in good ole Tallahassee this afternoon, Florida AG Bill McCollum filed a 22-page complaint on behalf of himself and the AG's of 12 other states (South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho, and South Dakota). The Florida suit, whose architect is David Rivkin of Baker Hostetler in D.C., echoes Virginia's challenge to the individual mandate.  It also raises two arguments that have even less chance of success: (1) that the legislation violates the Tenth Amendment's anti-commandeering principle, and (2) that the penalty on uninsured persons is a capitation or direct "tax" that is not apportioned among the states according to census data, in violation of Article I, section 9 ("No Capitation, or other direct Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken."); see Eisner v. Macomber, 252 U.S. 189, 206 (1920).  Huh?

Full post as published by CL&P Blog on March 23, 2010 (boomark / email).