Legal Commentary

Lawsuits Against the Health Care Bill

By Ilya Somin

The Publius blog a helpful post linking information on the various lawsuits recently filed against the Obama health care bill. In addition to the suit filed by 13 states and a separate suit by the state of Virginia, there is a little-noticed lawsuit challenging the individual mandate brought by the conservative Thomas More Law Center on behalf of several individuals who say they refuse to purchase health insurance. The little-known TMLC case could turn out to be important if the states? challenges to the individual mandate are dismissed for lack of standing or on other procedural grounds that may not apply to individual citizens who (unlike the states) are directly subject to the mandate.

When time permits, I plan to write posts on the three lawsuits, discussing some of the legal issues involved. For now, I will briefly that there are three sets of issues that arise:

I. Procedural questions related to standing and ripeness. Because the mandate doesn?t take effect until 2014, administration lawyers will almost certainly argue that the case isn?t ripe yet. They will also argue that the plaintiffs, especially the states (which are not directly subject to the mandate) don?t have standing.

II. The constitutionality of the individual mandate. In my view, Congress doesn?t have the power to enact this mandate under either the Commerce Clause or its power to tax. Obviously, the administration has a very different view.

III. The two lawsuits filed by the states also challenge the constitutionality of various mandates and federal funding conditions that the bill imposes directly on state governments. This part of the lawsuits faces tougher sledding than the part challenging the individual mandate. For years, the Court has (wrongly in my view) taken a very permissive attitude towards the constitutionality of federal funding of state governments and the conditions Congress attaches to the grants it offers. Still, these parts of the bill are very complicated and I haven?t yet had a chance to go over them thoroughly. So I may be missing an argument here that is stronger than it at first appears.

UPDATE: I initially referred to Publius as a ?legal blogger.? However Publius actually appears to be a group blog. I have changed the text of this post accordingly.

Full post as published by The Volokh Conspiracy on March 25, 2010 (boomark / email).