By guest blogger Robert Field:

No sooner had the health reform law passed Congress, than the attorney general of Florida filed suit to have it declared unconstitutional. The proceeding has since been joined by 20 states, while the attorney general of Virginia has filed a separate suit of his own. Most legal scholars believe that, whatever the underlying wisdom of the legislation, the suits are not likely to succeed. However, some disagree. In the end, the Supreme Court will probably make the final call, and its decisions are not always easy to predict.

What are the legal claims involved and how might they play out? The Virginia suit is the easiest to explore. It claims that the new law conflicts with a recently enacted Virginia statute that exempts residents from any requirement to purchase health insurance. Since this contradicts the federal law’s mandate requiring that everyone obtain coverage, the suit alleges that the mandate is nullified. The problem with this argument is that Article VI of the Constitution explicitly makes federal law supreme, leaving the states no power of nullification. This is one of the clearest and most settled aspects of constitutional law. While the judge in the case has rejected a motion to dismiss the suit outright, he has yet to make any ruling on the merits of Virginia’s claims.

The other suits raise more complex issues. Several claims are involved, but they mostly boil down to whether Congress has the power to compel all citizens to obtain health insurance. The bill’s supporters find authority in the Constitution’s Commerce Clause. It allows Congress to regulate private activities that could affect commerce between the states. The Supreme Court has traditionally read this power broadly, however Congress has never before used it to explicitly compel an activity, rather than to regulate or restrict one.

The key question is whether Congress convincingly demonstrated that avoiding health insurance burdens economic activity. This would require a showing that limited uptake of insurance by healthy people impairs the ability of companies to provide coverage to all regardless of preexisting conditions. This approach to applying the Commerce Clause is consistent with the reasoning used to justify Social Security and Medicare.

The law’s supporters also defend it under Congress’s power to levy taxes. The mandate can be seen as a new tax on everyone, but with an exemption for those who obtain insurance. There are technical issues regarding the nature of such a tax, but the Supreme Court has traditionally permitted Congress great leeway when taxes are concerned.

In the end, the cases may be resolved without even reaching these issues. Clear Supreme Court precedent states that federal courts cannot hear claims by states that federal laws are unconstitutional, so the attorneys general may be found to lack standing to bring the suits. In that case, any challenge would have to come from an individual claiming actual harm from the mandate, which would have to wait until it goes into effect in 2014.

The wheels of justice often grind slowly. Much may happen before the Supreme Court finally gets its say, if it ever does. For one thing, many of the attorneys general bringing the suits are running for either re-election or higher office, and it remains to be seen how aggressively their claims will be pursued after the November elections. When all is said and done, any changes to the law are more likely to come through new legislation than through lawsuits.By guest blogger

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