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Moments after President Obama signs the health reform bill today, mostly Republican aspiring governors -- AGs -- er, attorneys general in at least 12 states plan file suit to prevent the legislation from taking effect.  The chances of success in the Supreme Court are low, but the point of the lawsuits isn't legal -- it's political.  It advances the politics of conservative jurisprudence, and the political ambitions of conservatives, and it keeps the legislation itself in a state of suspended political animation. 

Virginia Attorney General Ken Cuccinelli plans to bring up the state's new law preventing the federal government from imposing mandates on its citizens. The supremacy clause, and virtually all recent precedent, should dispatch that argument easily.

The stronger argument is that the requirement for individuals to purchase insurance is an constitutional expansion of Congress's ability to regulate interstate commerce.

It is true that no court has ruled on the specific question, but there is plenty of reason and case law to believe that courts will be initially skeptical of the challenge. Congress's latitude here is wide. And this health care legislation has an undeniably broad effect on the economy, even though the specific provision in question is inherently localized. So the question is: can the government regulate localized -- individual -- decisions if they collectively serve a purpose that Congress is constitutionally empowered to be concerned about -- AND if depriving Congress of this particular right would upend the regulatory scheme itself.  Note: the definition of Commerce itself -- the exchange and transit of goods and services -- is a red herring. The courts have accepted Congress's ability to regulate things other than "Commerce."

Even as conservatives have narrowed the Commerce clause in recent decades, the key recent precedent would be Raich v. Gonzales, which to lay readers like me can be summed up as follows: if the court (including the conservatives) found that the inability of the government to be able to regulate an individual's marijuana plants in a backyard would have a substantial effect on Congress's intent to ban the growth and sale of medical marijuana, then it's very hard to argue that an individual requirement to purchase health insurance is somehow less relevant to Congress's intent to lower the cost of premiums. Congress's intent matters here, and in Raich the Court deferred to Congress's determination of what its regulatory regime should consist of. 

Here is a key line from the majority opinion:

While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity

Interpreted: when localized decisions have nationalized effects, then it is "squarely within" Congress's purview to regulate it.  (Wrote Justice Antonin Scalia in a concurring opinion: "Congress may regulate noneconomic intrastate activities only where the failure to do so "could ... undercut" its regulation of interstate commerce.")  Congress believes that the mandates, by creating a pool of healthy and unhealthy folks, will help contain the cost of health care. That's their intent; the court would be hard pressed to argue policy with Congress. 

A secondary argument is that government can't fine people for failing to purchase an insurance plan; this would violate the "Tax and Spending" clause because it is not a valid reason to impose a tax. Trouble here is that there are numerous instances of taxes being levied by Congress but called something else -- like a penalty or a fee -- that would already violate the clause if every fee or fine were deemed a tax. Still, this argument seems to have a slightly stronger foundation -- and this is, in part, what Florida Attorney General Bill McCollum will base his argument around the idea that the requirement for this tax is simply being alive.  The basic response is that Congress has the power to decide how to fund what it wants to fund.

In any event, the mandate kicks in in four years. So it would unusual for one of the attorneys general to argue that the legislation ought to be stayed immediately, because there is no immediate effect of the constitutionally suspect provision. In effect, the nature of the solution is built in to the problem. (When the mandate kicks in, anyone subject to it might decide to file suit on their own, on the grounds that the federal government can't force them to buy something they don't want.)

There is a final argument that conservatives will use in public and probably in court as well. It is that something like this -- this behemoth of a health care bill -- would never have been envisioned by the framers. But fine: in theory, judges would have to rule on a stay based on the likelihood of this argument winning the day down the line. That's unlikely.


Thumbnail photo credit: blmurch/Flickr
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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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