- The Washington Times - Monday, March 29, 2010

The same Supreme Court justices whom President Obama blasted during his State of the Union address this year may ultimately decide the fate of his crowning achievement as more than a dozen states have called on the courts to strike down the health insurance mandate of Democrats’ health care overhaul - a move that would threaten the entire law.

Two major constitutional challenges have been levied against the new law, one by the state of Virginia, which enacted a law exempting its citizens from the federal health insurance mandate, and another by Florida and 12 other states. Legal scholars are divided on the merits of the cases, and even Congress - through its research service and its budget scorekeeper - has said it’s an open question whether the provision could pass constitutional muster.

At issue is the scope of the federal government’s power over states and individuals. Critics of the law say the requirement that all Americans buy insurance or pay a fine, if allowed, would mean that Congress has virtually boundless authority to compel actions. Proponents argue that legal precedents support an expansive reading of the legislative branch’s license to regulate such activity.

“This is one of the most consequential lawsuits in our generation,” said Baker Hostetler lawyer David B. Rivkin Jr., who is serving as outside counsel to the 13 states that have filed suit. “The fact you have so many different state attorneys general, Republicans and Democrats, from a variety of states coming together to do this just underscores how strongly they feel that the act infringes core constitutional interests of their respective states.”

The mandate, which doesn’t take effect until 2014, is central to Democrats’ goal of insuring about 32 million more Americans. The law would offer tax credits to low-income individuals and allow young adults to remain on their parents’ policies longer.

Both of the state lawsuits challenge the federal government’s authority under the Commerce Clause, which grants Congress the power to regulate commerce among the states. The Florida case also cites a violation of the 10th Amendment, which reserves those powers not spelled out under the federal government in the Constitution to the state governments, and argues that the health care law’s expansion of state Medicaid programs threatens state sovereignty.

Among the arguments against the law is that because it does not allow for purchasing insurance across state lines - the insurance exchanges are state-based - the buying of health insurance does not constitute interstate commerce. In addition, the plaintiffs say, not purchasing health insurance does not constitute an economic activity.

“Thus far in our history, it has never been held that the Commerce Clause, even when aided by the Necessary and Proper Clause, can be used to require citizens to buy goods or services,” Virginia Attorney General Kenneth T. Cuccinelli II argues in his state’s lawsuit. “To depart from that history to permit the national government to require the purchase of goods or services would … create powers indistinguishable from a general police power in total derogation of our constitutional scheme of enumerated powers.”

While a requirement to buy health insurance might be new, some legal analysts say, Congress can in fact define an economic activity as something that results from not taking an action.

“The 1964 Civil Rights Act prohibits hotels and restaurants from discriminating based on race and thus prohibits inactivity,” said Erwin Chemerinsky, dean of the University of California Irvine School of Law, noting that law relied upon the Commerce Clause. “The Supreme Court has said that Congress can regulate economic activity that has a substantial effect on interstate commerce. Buying or refusing to buy insurance is economic activity. The effect on the economy is enormous.”

As an example, Mr. Chemerinsky cited cases in which the high court upheld Congress’ authority to regulate the amount of wheat that farmers grow for their own home consumption or prohibit the cultivation of marijuana for medicinal purposes.

“If that fits within the commerce power, surely the health industry does,” he said.

Mr. Rivkin, who served in various legal capacities for the Reagan administration and the George H.W. Bush administration, strongly disagreed. If that were the case, he argued, there would be no limits to the government’s power as the Founding Fathers intended. He said the cases cited by Mr. Chemerinsky involve the cultivating of commodities and therefore clearly economic activities, unlike the refusal to purchase health insurance.

“The remarkable thing about an individual insurance purchase mandate is you are not being subject to a requirement by virtue of any economic activity you engage in - you’re not doing a damn thing; you just exist,” he said. “If this is upheld, then the federal government can do everything it wants subject only to the restrictions contained in the Bill of Rights.”

Democratic leaders and the White House have scoffed at the legal challenges. Last week, press secretary Robert Gibbs said administration attorneys advised him “we’ll win these lawsuits.”

Jack M. Balkin, a professor at Yale Law School, noted that the new law structures the mandate as an amendment to the tax code and includes a discussion of the impact on state commerce, suggesting that the administration will defend it by citing the Commerce Clause as well as Congress’ power to tax under the “general welfare” provision. That provision says the federal government may impose taxes - in this case, the penalty for those who don’t buy insurance would be the tax - in order to provide for the “general welfare” of the country.

Not everyone agrees with that reasoning.

“It is a taxation and spending power, not an open-ended general welfare clause,” said Michael W. McConnell, a Stanford law professor and former circuit court judge appointed by President George W. Bush. “And by the way, ‘general’ had a very specific meaning in the late 18th century - it meant nationwide in scope, which is why some of the state-specific provisions are constitutionally dubious.”

Both lawsuits are in federal district courts, but analysts expect the issue to end up before the Supreme Court. If the high court were to rule in favor of the plaintiffs, the ramifications for Congress could be sweeping.

“It would be difficult for the court to hold that the law is outside of the power to tax and spend for the general welfare without calling into question various regulatory devices that both parties use in crafting legislation,” Mr. Balkin said. “Since the New Deal, both parties have used the taxing and spending power for a wide range of regulatory purposes and this is what the challenge to the health care bill calls into question.”

However, the justices have not been averse to striking down congressional laws favored by Mr. Obama. The president used his State of the Union address to attack, with the justices present, a decision that struck down limits on corporate and union spending for political campaigns on First Amendment grounds.

In his speech, Mr. Obama warned of foreign influence over U.S. elections while Justice Samuel A. Alito Jr. silently mouthed that Mr. Obama was not telling the truth. Chief Justice John G. Roberts Jr., in response to a questioner at a speech some weeks later, called the president’s words “very troubling.”

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