disorderlyvision
03-26-2010, 12:23 PM
http://www.law.com/jsp/article.jsp?id=1202446833651&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=NW_20100326&kw=Suits%20Challenging%20Health%20Care%20Law%20Exp lore%20Uncharted%20Legal%20Territory
Federal courts will encounter "uncharted" legal territory in lawsuits challenging the new, landmark health care law, say some experts, but the strategies for opposing and defending the law were mapped out months, if not years, ago.
Last fall, as the legislation was finding its legs in the Senate, debate erupted over the constitutionality of the new law's central feature -- a mandate that individuals carry health insurance. As The National Law Journal reported last October, liberal lawmakers and scholars disagreed with their conservative counterparts, who disagreed among themselves, about whether the mandate would survive constitutional scrutiny.
Those debates continue to play out now as the health insurance mandate is a prime target of two lawsuits thus far, one filed in Florida by 13 state attorneys general, and the other in Virginia by that state's attorney general. And, the key players in the debate months ago have emerged again, with some, such as David Rivkin of Baker & Hostetler -- a vocal opponent of the law -- playing an active role in the litigation.
"It is definitely not frivolous," said professor Randy Barnett of Georgetown University Law Center, referring to the recent lawsuits. "Anyone who says it is -- and I know a lot of law professors have -- they're whistling past the graveyard. Anything that has never been done before has no precedent for it. And this (law) has never been done before."
Although the law itself is unprecedented, the legal reasoning supporting it is well-grounded, according to health care scholar Mark Hall of Wake Forest University School of Law and other supporters.
"I think it's sort of notable that 13 to 14 attorneys general have joined the one lawsuit," said Hall. "But this legislation was written very carefully with the notion it probably would be challenged."
Hall noted that the legislation has "pages" of congressional findings on the connection between the health care crisis and interstate commerce. Those findings are clearly aimed at a major attack on the individual insurance mandate -- that it exceeds Congress' lawmaking power under the Commerce Clause.
But Barnett countered that the Supreme Court in U.S. v. Morrison, a 2000 decision striking down parts of the federal Violence against Women Act on Commerce Clause grounds, "shows findings are not dispositive."
Nearly two years ago, Hall undertook a research assignment into the legal issues surrounding a health insurance mandate. His paper, which concluded there were no constitutional barriers to that objective if properly designed, became part of the Senate record in December. Hall has not changed his views that the law stands on firm constitutional grounds.
"One element that's new in the Florida suit is the states are saying, 'We're forced to spend a lot more money on Medicaid, which is an unconstitutional commandeering of the states,'" he explained. "They say they're effectively stuck with Medicaid which they got into a long time ago. That's a novel argument. I haven't looked into it because it seems on its face so implausible. States can withdraw from Medicaid. Arizona didn't join until the 1980s and announced last week it's withdrawing from the children part. States can drop in and out."
In addition to Hall's report, last summer the Congressional Research Service also released an analysis which, although generally supportive of constitutionality, called the mandate "the most challenging question" and a "novel issue" whether Congress can use the Commerce Clause to require an individual to buy a good or service.
And in 1993, the Office of Legal Counsel in the Department of Justice examined the issue during the Clinton Administration's health care reform effort. It concluded: "Spiralling health care costs and inequities in the provision of health care services have an immediate and massive effect on the national economy and thus upon interstate commerce. As a result Congress unquestionably possesses the power 'to deal directly and specifically' with health care in order to obtain 'social, health [and] economic advantages' for the American people."
The constitutionality of the individual mandate has been debated "endlessly," and the debate now moves into the courts, said health law expert Timothy Jost of Washington & Lee University School of Law.
And if it reaches the Supreme Court, where some state attorneys general promise to go if they lose in the lower courts?
"The real champions of states' rights -- [Chief Justice William H.] Rehnquist and [Justice Sandra Day] O'Connor -- are gone," said Jost. "But it's a very activist Court and who knows what it would do."
Federal courts will encounter "uncharted" legal territory in lawsuits challenging the new, landmark health care law, say some experts, but the strategies for opposing and defending the law were mapped out months, if not years, ago.
Last fall, as the legislation was finding its legs in the Senate, debate erupted over the constitutionality of the new law's central feature -- a mandate that individuals carry health insurance. As The National Law Journal reported last October, liberal lawmakers and scholars disagreed with their conservative counterparts, who disagreed among themselves, about whether the mandate would survive constitutional scrutiny.
Those debates continue to play out now as the health insurance mandate is a prime target of two lawsuits thus far, one filed in Florida by 13 state attorneys general, and the other in Virginia by that state's attorney general. And, the key players in the debate months ago have emerged again, with some, such as David Rivkin of Baker & Hostetler -- a vocal opponent of the law -- playing an active role in the litigation.
"It is definitely not frivolous," said professor Randy Barnett of Georgetown University Law Center, referring to the recent lawsuits. "Anyone who says it is -- and I know a lot of law professors have -- they're whistling past the graveyard. Anything that has never been done before has no precedent for it. And this (law) has never been done before."
Although the law itself is unprecedented, the legal reasoning supporting it is well-grounded, according to health care scholar Mark Hall of Wake Forest University School of Law and other supporters.
"I think it's sort of notable that 13 to 14 attorneys general have joined the one lawsuit," said Hall. "But this legislation was written very carefully with the notion it probably would be challenged."
Hall noted that the legislation has "pages" of congressional findings on the connection between the health care crisis and interstate commerce. Those findings are clearly aimed at a major attack on the individual insurance mandate -- that it exceeds Congress' lawmaking power under the Commerce Clause.
But Barnett countered that the Supreme Court in U.S. v. Morrison, a 2000 decision striking down parts of the federal Violence against Women Act on Commerce Clause grounds, "shows findings are not dispositive."
Nearly two years ago, Hall undertook a research assignment into the legal issues surrounding a health insurance mandate. His paper, which concluded there were no constitutional barriers to that objective if properly designed, became part of the Senate record in December. Hall has not changed his views that the law stands on firm constitutional grounds.
"One element that's new in the Florida suit is the states are saying, 'We're forced to spend a lot more money on Medicaid, which is an unconstitutional commandeering of the states,'" he explained. "They say they're effectively stuck with Medicaid which they got into a long time ago. That's a novel argument. I haven't looked into it because it seems on its face so implausible. States can withdraw from Medicaid. Arizona didn't join until the 1980s and announced last week it's withdrawing from the children part. States can drop in and out."
In addition to Hall's report, last summer the Congressional Research Service also released an analysis which, although generally supportive of constitutionality, called the mandate "the most challenging question" and a "novel issue" whether Congress can use the Commerce Clause to require an individual to buy a good or service.
And in 1993, the Office of Legal Counsel in the Department of Justice examined the issue during the Clinton Administration's health care reform effort. It concluded: "Spiralling health care costs and inequities in the provision of health care services have an immediate and massive effect on the national economy and thus upon interstate commerce. As a result Congress unquestionably possesses the power 'to deal directly and specifically' with health care in order to obtain 'social, health [and] economic advantages' for the American people."
The constitutionality of the individual mandate has been debated "endlessly," and the debate now moves into the courts, said health law expert Timothy Jost of Washington & Lee University School of Law.
And if it reaches the Supreme Court, where some state attorneys general promise to go if they lose in the lower courts?
"The real champions of states' rights -- [Chief Justice William H.] Rehnquist and [Justice Sandra Day] O'Connor -- are gone," said Jost. "But it's a very activist Court and who knows what it would do."