Legal Commentary

Taking ObamaCare Challenges Seriously

By Jonathan H. Adler

The New York Times might be the last place one would expect a news story suggesting that constitutional objections to the recently enacted health care reform law should be taken seriously, but that?s just what we got today.  The story focuses on the lawsuit by twenty state attorneys general, among others, against the health care law filed in the U.S. district court for the Northern District of Florida.  The article is quite well-balanced and lays out the central legal issues in the litigation.  Here?s a taste:

In the seven weeks since the legislation passed, at least a dozen lawsuits have been filed in federal courts to challenge it, according to the Justice Department. But the case that could carry the most weight, and may be on the fastest track in the most advantageous venue, is the one filed in Pensacola, Fla., by state officials, just minutes after President Obama signed the bill.

Some legal scholars, including some who normally lean to the left, believe the states have identified the law?s weak spot and devised a credible theory for eviscerating it.

The power of their argument lies in questioning whether Congress can regulate inactivity ? in this case by levying a tax penalty on those who do not obtain health insurance. If so, they ask, what would theoretically prevent the government from mandating all manner of acts in the national interest, say regular exercise or buying an American car?

Other experts, however, dismiss the Florida lawsuit as a politically motivated lark at taxpayer expense, and argue that the insurance mandate falls comfortably within Supreme Court precedents. The states, they say, may not even withstand a challenge to their standing to bring the suit, since they are only indirectly affected by the mandate.

The article highlights the role of Florida AG Bill McCollum and private attorneys, David Rivkin and Lee Casey, for spearheading the suit. It also notes that the court has scheduled a hearing on the federal government?s motion to dismiss for September 14.

Full post as published by The Volokh Conspiracy on May 11, 2010 (boomark / email).