The Republican plan to repeal health care reform is already facing broad skepticism. So now we pivot to another GOP strategy for battling reform: court challenges. Republicans are threatening a challenge to health care's legality in the Supreme Court, and state-level attorney generals are moving to try and block the laws from taking effect in their states. Here are the plans conservatives are suggesting and the counter-arguments brandished by liberals.
How to challenge health care in court
- States Can Block It Law Professor Randy Barnett explains in the Washington Post how individual states can block health care: "Make it unconstitutional. Article V of the Constitution gives state legislatures the power to require Congress to convene a convention to propose an amendment to the Constitution. If two-thirds of state legislatures demand an amendment barring the federal regulation of health insurance or an individual mandate, Congress would be constitutionally bound to hold a convention."
- Unprecedented Insurance Mandate The Chicago Tribune's Dennis Byrne asks, "Can the federal government make you buy a specific good or service?" He writes, "All kinds of analogies are dragged forth to rationalize this unprecedented power. The most frequent is: States, including Illinois, require you to buy car insurance. It's not quite the same, though. Driving a car is optional; it's a choice you make. Hardly so with mandated health insurance. There's no way you can escape it; the Internal Revenue Service will hunt you down and fine or jail you."
- Can IRS Really Regulate Insurance? 24/7 Wall Street's Douglas McIntyre says that the IRS will regulate some parts of the reform, such as insurance-related taxes. "Some portions of Americans do not pay their taxes. People with incomes below a certain level are not always required to file with the IRS on an annual basis at all. The use of the IRS as a health care monitoring agency is imperfect at best."
- Possible If GOP Sweeps Elections Legal blogger Ilya Somin concedes, "The Supreme Court is reluctant to take on the political branches of government on major issues that are a high priority for Congress and the president. When it has done so in the past (as in the 1930s), it has usually lost." However, "If majority opinion continues to oppose the bill and Republicans make big gains in November as a result, the courts might be less hesitant to strike it down. They will not face any political retribution if they strike down a bill that most of the public and a new congressional majority actually opposes. Indeed, their public standing might even increase if they did so."
Why court challenges will fail
- Mandates Are Constitutional The Daily Beast's Adam Winkler defends the Constitutionality of the mandate. "Because the individual mandate is a tax provision that promotes the general welfare, it is within Congress’ taxing power. This is one of broadest grants of authority the Constitution gives Congress." He quips, "In fact, the Founding Fathers themselves included an 'individual mandate' in a law way back in 1792." They wrote a law requiring "free able-bodied" serve in militias--with a gun they had to buy on their own.
- Courts Give Congress Power Here The New York Times' John Schwartz writes, "The broad extent of the government’s power to regulate interstate commerce has been recognized since the Roosevelt administration. In fact, courts have backed Congress’s ability to regulate under the Commerce Clause of the Constitution, even when the issues might not seem, at first blush, to even involve interstate commerce at all."
- Can't Be Challenged Until 2014 The Washington Independent's David Weigel reports, "The problem with a challenge, say conservatives, is that the mandate for health care — an idea with origins on the right that has become anathema ever since its implementation in Massachusetts — will not take effect until 2014. Whether attorneys general can successfully challenge the mandate until then is unclear." By then, the anti-health care fire will have died down considerably.
- Winning Isn't the Real Reason To Challenge The Atlantic's Marc Ambinder says conservatives get it. "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."