With Kansas joining the suit, there are now 26 states as parties to litigation challenging the constitutionality of the health care law.
I first have to say that I never saw this coming. I didn’t suss out the specific argument that the states would be making, and I still don’t agree with it now that I see it, but I no longer think it’s frivolous.
On a broader scale, though, I don’t think there has ever been a case where a federal law has seen such organized and united opposition from a majority of states.
As commentator Ilya Somin notes, “Legally speaking, it doesn’t matter whether the number of states challenging the law is twenty-six or two. Indeed, it should not even matter whether any states oppose the law at all, so long as there is at least one private plaintiff with standing (and there are in fact many such). The arguments for and against the law will be the same.” But he goes to observe that from a political standpoint, it might tip the scale; the Supreme Court is historically reluctant to undo major federal initiatives that have strong support from the president and Congress. The states’ unified action might give the Court the political cover to kill the law if it were inclined to do so but worried about backlash.
I don’t particularly place much value on the number of states opposing this. All you need to oppose the health care law is a state AG who’s far enough to the right to try to curry favor with the Tea Party. The fact that a state has joined the lawsuit doesn’t mean a majority of the state’s population wants the mandate declared unconstitutional. It doesn’t even mean that a majority of the state legislature want the mandate declared unconstitutional. All it means is that the state AG wants the mandate declared unconstitutional, and possibly that the governor also wants that or doesn’t give a damn, depending on if the AG is appointed or elected (i.e., whether the governor has any degree of control or influence on the AG).
In other words, a state’s participation in the lawsuit doesn’t mean anything in regards to anyone but the AG.
The AG is an elected official. He presumably wants to keep getting elected. So it definitely does say something about the desires of a state’s citizenry for a state’s AG to take this position.
That certainly allows for at least an inference that Kansas’ move is not without popular support from its voters.
But as I say above (actually, as I paraphrase from Ilya Somin above) the number of states is not legally relevant anyway. It may simply indicate a way for the Court to seek political cover if it wants political cover.
I was trying to find a simple list and the best I come across is the states are all over the place on why they are opposing healthcare reform. Vermont and Massachusetts already have a healthcare system in place. Others feel it will cause their state to spend money (and of course they do not want to). Others feel it is the Feds usurping state rights. Doubtless there are other reasons.
I am genuinely asking. I only did a cursory look at what the states were on about and it led to the sense they are all over the place on this.
OK, show of hands: Who here even knows who your state AG is? I imagine that most politically-active people know at least something about their senators and representatives, and put at least a little thought into who of those folks they’re going to vote for, but AGs get much less publicity. So it seems to me to be much more significant, and more reflective of the will of the people, that a majority (supermajority, even) of senators voted for the bill than that a majority of AGs oppose it.
I think the simplest way to determine if the lawsuits are motivated by the will of the people is to count how many AGs who won election last year promised to join/file suits challenging HCR.
ETA: By way of example, in addition to Derek Schmidt, Mike DeWine of Ohio ran on the same promise and has asked the Florida AG to join Ohio as a party.
I certainly hope that these states are successful. I don’t see how the federal government, or a state for that matter, can force someone to buy something. I’m surprised 99% of the country isn’t against this. Because once they can force you to buy one thing, that genie is out of the bottle. And the argument I hear, about car insurance, is not relevant—I can choose to own a car or not. This mandate hits you just for breathing.
Obama got some flak from this in the past, as people didn’t see how the government could do this, unless it was a tax. He argued up and down that it was NOT a tax. But now that the issue is in court, what’s the administration’s defense? “Of course the government can do this, it’s a tax. Or tax-like.” (I paraphrase, of course.)
As far as the legal challenge is concerned, it’s irrelevant what Obama called it. As President, he neither authored nor sponsored the bill; courts may consider the bill’s legislative history, but what the President says or said is not part of that.
I know that. I just thought I’d point out that the President, who is supposedly a constitutional scholar, either doesn’t understand the basics of the document or is simply a flat-out liar. Either way, valuable information.
So, all the arguments he gave as to why we should do this, and can do this, can be thrown out the window? I’d say that’s about right.
I know you’re just taking the opportunity for a gratuitous swipe, but this debate hardly involves “the basics of the document”.
And yes, the arguments he gave as to why we should and/or can do this should be thrown out the window, as the same relate to the legal challenge. That’s exactly what I said in my previous post.
But you “know that”.
I’m not sure he’s saying he’s sussed it out even now - and it went from frivolous to not frivolous pretty much by definition when the VA judge ruled that the mandate was unconstitutional.
Swipe aside, it does go to the basics of the document. It goes to what power the federal government has or doesn’t have. The term “enumerated powers” comes to mind. In addition, I usually don’t like arguments that assert some vague reference to our freedoms being impeded upon, but I think that it is being impeded upon in a large way with Obamacare. No one should be forced to buy anything, simply by the condition of them being able to breathe. It’s as if we’re taxing air. IMO, that runs counter not only to the constitution, but the idea of the nation in an even more fundamental way.
Except that’s a little bit of misrepresentation. People aren’t going to be prevented from breathing if they don’t buy health insurance, just required to pay a penalty. Now you may not like that, but it is hardly a great departure from the concept that people who chose not to purchase automobile insurance are prevented from having an automobile.
It’s also a logical public policy extension of the law requiring hospitals to provide emergency care regardless of patients’ ability to pay. If you’re going to mandate that they do so, you also ought to mandate that a mechanism for reimbursement exists.
Ohio’s new AG Michael DeWine recently had the state join one the anti-Obama care lawsuits. DeWine was elected by a margin of 47.8% to 46% which is hardly a mandate for sweeping national policy changes. I wish DeWine would go back to doing his job, none of which involve setting national health care policy. www.ohioattorneygeneral.gov
No, it is a GREAT departure. With auto insurance, you opt-in. Don’t want to buy auto insurance? Easy, do buy a car. Not so with Obamacare, as it is now. You are forced to buy something—or pay a penalty for not doing so—simply because you are alive and in the U.S.
Auto insurance and what we’re talking about here are universes apart. BUt it is telling that that is the example always offered up. It’s telling because there is NO example of the government ever doing this before. Unless you know of one. I’d love to hear it if you do.