# Ten Republican state AGs to sue over health bill **URL:** \ **Category:** Great Debates\ **Created:** [March 23, 2010, 2:53am UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432 "2010-03-23T02:53:39Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 23, 2010, 2:53am UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/1 "2010-03-23T02:53:39Z")
[The AG of Florida just announced:](http://www.cnn.com/2010/POLITICS/03/22/health.care.lawsuit/) > [@](#): > > Bill McCollum, the Republican attorney general under fellow Republican Gov. Charlie Crist, told a news conference that the lawsuit would be filed once President Obama signs the health care bill into law. He said he’ll be joined by his counterparts in Alabama, Nebraska, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington. > > All of the attorneys general in the 10 states mentioned by McCollum are Republican, but **McCollum said the lawsuit would be about the law and not politics.** > > \ > > McCollum said the lawsuit would challenge the bill’s provision requiring people to purchase health insurance, along with provisions that will force state government to spend more on health care services. > > “This is a tax or a penalty on just living, and that’s unconstitutional,” he said of the mandate to purchase health coverage. “There’s no provision in the Constitution of the United States giving Congress the power to do that.” > > McCollum also said that portions of the bill would force states to spend money they don’t have, which he called a violation of the 10th Amendment to the Constitution. Most of those states, BTW, are near the bottom of the [United States Health Foundation’s health rankings.](http://www.forbes.com/2009/11/16/unhealthy-healthy-states-lifestyle-health-states-top_chart.html) Well, at least going to court is a more mature approach than the [nullification](http://en.wikipedia.org/wiki/Nullification_%28U.S._Constitution%29) idea floating around the RW blogosphere this week. But does anybody really believe the bolded part? As for the legal theory, this is completely unprecedented AFAIK. No landmark Supreme Court decision has ever been based on the [Tenth Amendment,](http://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution) and I don’t expect this will be the first. As for the “tax on living” argument, aren’t all taxes taxes on living? E.g., **everybody** pays property tax, whether they own real estate or not. (If you rent, part of your rent goes to your landlord’s property tax; if you buy anything in a store, part of the price goes to the store’s landlord’s property tax.) ---
**Author:** ![Rand\_Rover](https://avatars.discourse-cdn.com/v4/letter/r/db5fbb/32.png) [@Rand\_Rover](https://boards.straightdope.com/u/Rand_Rover)\ **Post date:** [March 23, 2010, 3:02am UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/2 "2010-03-23T03:02:38Z")
Prepare yourself for several posters to post some excellent and nuanced analyses of the legal merits of this lawsuit. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 23, 2010, 3:08am UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/3 "2010-03-23T03:08:01Z")
> [@Rand\_Rover](#): > > Prepare yourself for several posters to post some excellent and nuanced analyses of the legal merits of this lawsuit. I’m prepared for **Bricker** to do so. No other RW on this board is up to it. ---
**Author:** ![Robot\_Arm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/robot_arm/32/18280_2.png) [@Robot\_Arm](https://boards.straightdope.com/u/Robot_Arm)\ **Post date:** [March 23, 2010, 3:11am UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/4 "2010-03-23T03:11:24Z")
> [@](#): > > Ten Republican state AGs to sue over health bill That can’t be right. Surely they’d never want some activist judge to legislate from the bench like that. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [March 23, 2010, 3:14am UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/5 "2010-03-23T03:14:23Z")
> [@BrainGlutton](#): > > I’m prepared for **Bricker** to do so. No other RW on this board is up to it. Well, guess I won’t bother to try, then. :rolleyes: ---
**Author:** ![Rand\_Rover](https://avatars.discourse-cdn.com/v4/letter/r/db5fbb/32.png) [@Rand\_Rover](https://boards.straightdope.com/u/Rand_Rover)\ **Post date:** [March 23, 2010, 3:15am UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/6 "2010-03-23T03:15:30Z")
> [@Robot\_Arm](#): > > That can’t be right. Surely they’d never want some activist judge to legislate from the bench like that. :rolleyes: And . . . it begins. The term “activist judge” means a judge who makes law instead of applying the law. The ten AsG would apparently be asking a judge to overturn health care reform based on its violation of current law. They wouldn’t be asking the judge to create new law to apply to overturn health care reform. Bricker has done a shit-load of posts defining the concept of “activist judges” if you care to search and educate yourself. ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [March 23, 2010, 3:22am UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/7 "2010-03-23T03:22:46Z")
> [@Rand\_Rover](#): > > Prepare yourself for several posters to post some excellent and nuanced analyses of the legal merits of this lawsuit. Aren’t you a lawyer? I’m assuming you took ConLaw at some point during your education. Where’s your analysis, counselor? ---
**Author:** ![DxZero](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@DxZero](https://boards.straightdope.com/u/DxZero)\ **Post date:** [March 23, 2010, 3:36am UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/8 "2010-03-23T03:36:10Z")
More General Questiony than Great Debatey, but… Under what theory do the AG’s think they have legal standing to bring the suit? Specifically, the individual mandate part. ---
**Author:** ![DanBlather](https://avatars.discourse-cdn.com/v4/letter/d/f4b2a3/32.png) [@DanBlather](https://boards.straightdope.com/u/DanBlather)\ **Post date:** [March 23, 2010, 4:48am UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/9 "2010-03-23T04:48:48Z")
> [@Rand\_Rover](#): > > :rolleyes: > > And . . . it begins. The term “activist judge” means a judge who makes law instead of applying the law. The ten AsG would apparently be asking a judge to overturn health care reform based on its violation of current law. They wouldn’t be asking the judge to create new law to apply to overturn health care reform. Bricker has done a shit-load of posts defining the concept of “activist judges” if you care to search and educate yourself. Cool, so Roe v Wade was not a case of activist judges as it just overturned the law banning abortion. ---
**Author:** ![dudemanjack](https://avatars.discourse-cdn.com/v4/letter/d/49beb7/32.png) [@dudemanjack](https://boards.straightdope.com/u/dudemanjack)\ **Post date:** [March 23, 2010, 1:12pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/10 "2010-03-23T13:12:22Z")
If it is unlawful to require people to have health insurance is it also unlawful for the government to require car insurance? ---
**Author:** ![Inner\_Stickler](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/inner_stickler/32/318_2.png) [@Inner\_Stickler](https://boards.straightdope.com/u/Inner_Stickler)\ **Post date:** [March 23, 2010, 1:16pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/11 "2010-03-23T13:16:40Z")
The argument is that if you do not wish to buy car insurance you simply do not buy a car, but if you wish to avail yourself of the benefits of a car, you must have insurance. Everyone has a body and wishes to avail themselves of the benefits of such, therefore it is incumbent upon everyone to purchase health insurance. ---
**Author:** ![Brown\_Eyed\_Girl](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/brown_eyed_girl/32/3574_2.png) [@Brown\_Eyed\_Girl](https://boards.straightdope.com/u/Brown_Eyed_Girl)\ **Post date:** [March 23, 2010, 1:35pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/12 "2010-03-23T13:35:37Z")
> [@Inner\_Stickler](#): > > The argument is that if you do not wish to buy car insurance you simply do not buy a car, but if you wish to avail yourself of the benefits of a car, you must have insurance. > > Everyone has a body and wishes to avail themselves of the benefits of such, therefore it is incumbent upon everyone to purchase health insurance. What’s the big deal? My family pays about $6,000/yr in premiums for employer subsidized health insurance that barely covers jack. The maximum tax penalty will be 2.5% of income for not carrying health insurance, which doesn’t come anywhere close to what we pay in annual premiums, even it is per person. Sounds to me like choosing to pay the penalty over choosing to pay the insurance would be a net gain. And since the insurance companies can’t deny me coverage when I need it, what’s to stop me from making this choice? Either I’m missing something or self-centered ‘I can take care of myself, I don’t need no stinkin’ government handout’ people should be rejoicing. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 23, 2010, 1:47pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/13 "2010-03-23T13:47:42Z")
> [@Rand\_Rover](#): > > :rolleyes: > > And . . . it begins. The term “activist judge” means a judge who makes law instead of applying the law. The ten AsG would apparently be asking a judge to overturn health care reform based on its violation of current law. They wouldn’t be asking the judge to create new law to apply to overturn health care reform. Bricker has done a shit-load of posts defining the concept of “activist judges” if you care to search and educate yourself. No. Did you read the OP? They believe it is unconstitutional. Just to clarify with a bit of an extreme example: Suppose Congress passed a law banning speech critical of health care. Would it be an act of judicial activism to overturn that law? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 23, 2010, 2:45pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/14 "2010-03-23T14:45:22Z")
> [@BrainGlutton](#): > > I’m prepared for **Bricker** to do so. No other RW on this board is up to it. Well, thanks for the kind words. I wish I had better news, since I believe that from a public policy perspective the group of AGs has the correct idea. Unfortunately, I don’t believe that they have the right idea about the constitution. It’s true that from an originalist standpoint, this legislation crosses some pretty extreme boundaries. And if this were, say, 1930, I’d be right there with them. But since 1930, the courts have consistently upheld expansive readings of Commerce Clause power, and we have now built a massive caselaw and regulatory framework on the proposition that the Commerce Clause means something pretty broad. In that modern context, I don’t see anything in this bill that is legitimately violative of Commerce Clause reach. It’s constitutional. I don’t like it, I think it’s unwise in the extreme, but in my view, it’s constitutional. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 23, 2010, 2:48pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/15 "2010-03-23T14:48:41Z")
> [@Bricker](#): > > It’s true that from an originalist standpoint, this legislation crosses some pretty extreme boundaries. And if this were, say, 1930, I’d be right there with them. > > But since 1930, the courts have consistently upheld expansive readings of Commerce Clause power, and we have now built a massive caselaw and regulatory framework on the proposition that the Commerce Clause means something pretty broad. In that modern context, I don’t see anything in this bill that is legitimately violative of Commerce Clause reach. The article in today’s San Jose Mercury News says that Congress took efforts to structure this as a tax for the purpose of ensuring it was constitutional. No more details than that, but do you understand what they mean? It’s unclear to me how this insurance mandate could be considered a “tax”. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 23, 2010, 2:59pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/16 "2010-03-23T14:59:24Z")
> [@John\_Mace](#): > > The article in today’s San Jose Mercury News says that Congress took efforts to structure this as a tax for the purpose of ensuring it was constitutional. No more details than that, but do you understand what they mean? It’s unclear to me how this insurance mandate could be considered a “tax”. In another thread, I just quoted _Sonzinsky v. U.S._ a 1937 Supreme Court case that stands for the proposition that as long as Congress has the power to enact a tax, the courts may not “Inquir[e] into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it,” because such inquiry is “beyond the competency of courts.” ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 23, 2010, 3:02pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/17 "2010-03-23T15:02:11Z")
> [@Bricker](#): > > In another thread, I just quoted _Sonzinsky v. U.S._ a 1937 Supreme Court case that stands for the proposition that as long as Congress has the power to enact a tax, the courts may not “Inquir[e] into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it,” because such inquiry is “beyond the competency of courts.” Just saw that. Basically, though, that let’s Congress do pretty much anything as long as they call it a tax, does it not? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 23, 2010, 3:11pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/18 "2010-03-23T15:11:17Z")
> [@John\_Mace](#): > > Just saw that. Basically, though, that let’s Congress do pretty much anything as long as they call it a tax, does it not? Yes. Almost anything. They can’t criminalize anything they please, but they have extremely broad regulatory powers via taxation. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 23, 2010, 3:12pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/19 "2010-03-23T15:12:56Z")
> [@Bricker](#): > > Yes. Almost anything. > > They can’t criminalize anything they please, but they have extremely broad regulatory powers via taxation. Maybe the Tea Partiers should consider a little civil disobedience. Don’t buy health insurance, if you don’t want it, and see if you get hauled off to jail if you don’t pay the fine. ---
**Author:** ![Enderw24](https://avatars.discourse-cdn.com/v4/letter/e/ba9def/32.png) [@Enderw24](https://boards.straightdope.com/u/Enderw24)\ **Post date:** [March 23, 2010, 3:19pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/20 "2010-03-23T15:19:32Z")
> [@BrainGlutton](#): > > As for the legal theory, this is completely unprecedented AFAIK. No landmark Supreme Court decision has ever been based on the [Tenth Amendment,](http://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution) and I don’t expect this will be the first. I guess it depends on your definition of “landmark.” There have been Supreme Court cases on the 10th Amendment from, say, 1920’s [Missouri v. Holland](http://en.wikipedia.org/wiki/Missouri_v._Holland) to 1995’s [Gonzales v. Raich](http://en.wikipedia.org/wiki/Gonzales_v._Raich). Now if this bill were paid for using the money saved by housing soliders in downtown condos, THAT would be a pretty landmark Constitutional case. [Next page](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432.md?page=2)