# 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:** 2
**Author:** ![sachertorte](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sachertorte/32/3727_2.png) [@sachertorte](https://boards.straightdope.com/u/sachertorte)\ **Post date:** [March 23, 2010, 3:20pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/21 "2010-03-23T15:20:49Z")
> [@John\_Mace](#): > > It’s unclear to me how this insurance mandate could be considered a “tax”. I don’t know anything about the federal health reform bill, but in Massachusetts, if you don’t have insurance you don’t get the personal exemption on your state income tax. Thus the effect is higher tax paid. It’s functionally a fine, but it gets rolled into your taxes. ---
**Author:** ![Nametag](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nametag/32/406_2.png) [@Nametag](https://boards.straightdope.com/u/Nametag)\ **Post date:** [March 23, 2010, 3:24pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/22 "2010-03-23T15:24:00Z")
> [@](#): > > 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. Don’t be silly. I haven’t read the new law myself, and there may or may not be specific provisions, but the usual enforcement for unpaid taxes is garnishment. But speaking of constitutionality, how sound is it to compare the new tax to, say, Medicare? ---
**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, 4:04pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/23 "2010-03-23T16:04:04Z")
> [@Nametag](#): > > Don’t be silly. I haven’t read the new law myself, and there may or may not be specific provisions, but the usual enforcement for unpaid taxes is garnishment. How would they garnish the payments of someone who is self-employed? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 23, 2010, 4:06pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/24 "2010-03-23T16:06:11Z")
They can levy bank accounts and retain tax refunds, too. ---
**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, 4:08pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/25 "2010-03-23T16:08:39Z")
> [@ElvisL1ves](#): > > They can levy bank accounts and retain tax refunds, too. Banks? How quaint. I’m a hard-core Tea Partier who stores my gold in my survivalist bunker. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [March 23, 2010, 4:13pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/26 "2010-03-23T16:13:21Z")
He’s kidding. Pretty sure. Yes, definitely, he’s kidding. ---
**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, 4:22pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/27 "2010-03-23T16:22:23Z")
> [@elucidator](#): > > He’s kidding. Pretty sure. Yes, definitely, he’s kidding. It’s the generic “I”, sort of like the generic “you”. Maybe that was too much of a caricature, but I’m sure there are few out there… BTW, according to MSNBC\<, there are now 13 states suing, not 10. ---
**Author:** ![Stuffy](https://avatars.discourse-cdn.com/v4/letter/s/f17d59/32.png) [@Stuffy](https://boards.straightdope.com/u/Stuffy)\ **Post date:** [March 23, 2010, 4:27pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/28 "2010-03-23T16:27:43Z")
> [@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 an article on I want to say Slate, it’s cited that the fine for not acquiring insurance is levied by the IRS. I’ll see if I can track it down. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [March 23, 2010, 4:38pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/29 "2010-03-23T16:38:34Z")
> [@Bricker](#): > > 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. > > It’s constitutional. I don’t like it, I think it’s unwise in the extreme, but in my view, it’s constitutional. > [@](#): > > 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. Except for the _Lopez_ decision. It is undeniable the Court has, over the years, permitted Congress to expand its authority under the commerce clause. To be sure, there are some cases which espouse principles to suggest the outcome in Congress’ favor. If I recall correctly, most if not all commerce clause cases decided by the Court were of the nature of Congress asserting the people could not engage in some activity. For example: _Wickard_, the farmer was prohibited from growing wheat in an amount beyond that which is allowed by law, even if the excess was for individual consumption (he was using it to feed his chickes.). _Raich_, the government can prohibit people from possession marijuana, even if the marijuana never moved through the channels of interstate commerce. However, they have never decided a case on the basis of these merits and there is no prior case anyone can point to which unequivocally resolves this case for us. Here, Congress is not prohibiting activity but mandating an activity, and there may be enough on the Court, as was the case in _Lopez_, to tell Congress their power under the commerce clause does not reach this far. After all, as you noted, from an originalist perspective, the mandate crosses an extreme boundary, and there are presently two self-avowed originalist on the Court in J. Scalia, and Thomas, and originalist sympathizers in Roberts and Alito. If they can persuade J. Kennedy, this may be the case where the Court places a limit on the “substantially affects commerce” test and asserts such a test does not justify this exercise of power by Congress. I would not be surprised if the Court upheld this amount of government power. However, I would not be surprised if the Court ruled this power unconstitutional. The Court may find the implication of such a power not palatable. The very notion Congress can mandate people to purchase a good/product may be just to extreme of a notion for the Court to swallow, or the inference following from it too extreme for them to accept. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [March 23, 2010, 4:43pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/30 "2010-03-23T16:43:25Z")
> [@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.” Such language is not applicable here though, because the statute explicitly spells out the scheme. The statute tells us the tax imposed is calculated to make people purchase health insurance. I agree, Congress has regulatory power with taxation (the Whiskey tax sufficiently demonstrates this point) but the specific question here is whether this regulatory power under taxation includes the power to regulate people to purchase a good/product? The case you cited does not answer this question for us. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [March 23, 2010, 4:51pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/31 "2010-03-23T16:51:06Z")
> [@Bricker](#): > > 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. Here is an interesting article about the Supreme Court recently reigning in the Federal Government’s power under the commerce clause: [http://www.officialwire.com/main.php?action=posted\_news&rid=117236&catid=935](http://www.officialwire.com/main.php?action=posted_news&rid=117236&catid=935) Here is an interesting quote from the article: > [@](#): > > Barnett sees the U.S. Supreme Court giving the law some leeway in that healthcare affects interstate commerce. “But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity,” Barnett says. “That is unprecedented.” ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [March 23, 2010, 4:57pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/32 "2010-03-23T16:57:20Z")
Public welfare. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [March 23, 2010, 5:01pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/33 "2010-03-23T17:01:42Z")
The lawsuits" are symbolic, and are purely about governors pandering to their constiuents. Nothing I’ve read from legal experts (aside from the odd political shill in some right wing media sources) gives these things any real chance of success. This is what impotent loser rage looks like. These lawsuits are basically just so many flaccid putzes being waved around. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [March 23, 2010, 5:11pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/34 "2010-03-23T17:11:50Z")
Im just a blowhard, not a lawyer, so I have a question for those who actually know what they’re talking about. Could there be a question of standing for the states filing these lawsuits? After all, the states themselves aren’t being required to do anything, are they? Could an argument be made that a suit can only be brought by an individual who has been taxed for not buying insurance? The Court has used issues of standing before to avoid adjudicating thorny issues (e.g. _Newdow_). This part of the HCR [del]bill[/del] law does not go into effect until 2014. Could the Court at least temporarily blow off the lawsuits by declaring that the states have no standing? Yes, I know that the states have drafted their own meaningless legislation saying people can’t be taxed for not buying stuff, but the states have no jurisdiction over the IRS or the federal government, so what would be their standing in these lawsuits? ---
**Author:** ![Clothahump](https://avatars.discourse-cdn.com/v4/letter/c/51bf81/32.png) [@Clothahump](https://boards.straightdope.com/u/Clothahump)\ **Post date:** [March 23, 2010, 5:17pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/35 "2010-03-23T17:17:06Z")
> [@Stuffy](#): > > In an article on I want to say Slate, it’s cited that the fine for not acquiring insurance is levied by the IRS. And the IRS is the United States of America’s version of the Gestapo. You are definitely guilty until proven innocent with them. ---
**Author:** ![\_Undecided\_Adrian](https://avatars.discourse-cdn.com/v4/letter/_/eada6e/32.png) [@\_Undecided\_Adrian](https://boards.straightdope.com/u/_Undecided_Adrian)\ **Post date:** [March 23, 2010, 5:41pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/36 "2010-03-23T17:41:00Z")
Actually, the IRS is the American version of the Finanzamt. The Gestapo was not all about taking money, you know? ---
**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, 5:43pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/37 "2010-03-23T17:43:32Z")
> [@NotreDame05](#): > > After all, as you noted, from an originalist perspective, the mandate crosses an extreme boundary, and there are presently two self-avowed originalist on the Court in J. Scalia, and Thomas, and originalist sympathizers in Roberts and Alito. Actually, Nino styles himself a textualist, not an originalist. His book _A Matter of Interpretation_ is an excellent read for the nuances of the difference. ---
**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, 5:49pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/38 "2010-03-23T17:49:09Z")
> [@Diogenes\_the\_Cynic](#): > > Im just a blowhard, not a lawyer, so I have a question for those who actually know what they’re talking about. Could there be a question of standing for the states filing these lawsuits? After all, the states themselves aren’t being required to do anything, are they? Could an argument be made that a suit can only be brought by an individual who has been taxed for not buying insurance? > > The Court has used issues of standing before to avoid adjudicating thorny issues (e.g. _Newdow_). This part of the HCR [del]bill[/del] law does not go into effect until 2014. Could the Court at least temporarily blow off the lawsuits by declaring that the states have no standing? Yes, I know that the states have drafted their own meaningless legislation saying people can’t be taxed for not buying stuff, but the states have no jurisdiction over the IRS or the federal government, so what would be their standing in these lawsuits? Hell I am a lawyer and a blowhard and I asked the same thing above. I skimmed very quickly through [South Dakota v. Dole](http://www.oyez.org/cases/1980-1989/1986/1986_86_260), which was one of the few cases I could think of in which a state sued the federal government, but in that case the state itself, as a entity, was harmed by the legislation. Thinking about it, the AG’s may have some standing if portions of the legislation conflict with a state statute, like in [Gonzalez v. Oregon](http://www.law.cornell.edu/supct/html/04-623.ZO.html). I’m pretty sure they have to make the argument that the HCR bill directly contradicts a State statute, in an area of the law reserved to the several states by the Constitution. Or something along those lines. ---
**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, 5:53pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/39 "2010-03-23T17:53:18Z")
> [@DxZero](#): > > Hell I am a lawyer and a blowhard and I asked the same thing above. I skimmed very quickly through [South Dakota v. Dole](http://www.oyez.org/cases/1980-1989/1986/1986_86_260), which was one of the few cases I could think of in which a state sued the federal government, but in that case the state itself, as a entity, was harmed by the legislation. > > Thinking about it, the AG’s may have some standing if portions of the legislation conflict with a state statute, like in [Gonzalez v. Oregon](http://www.law.cornell.edu/supct/html/04-623.ZO.html). I’m pretty sure they have to make the argument that the HCR bill directly contradicts a State statute, in an area of the law reserved to the several states by the Constitution. > > Or something along those lines. Virginia did pass a law forbidding forcing people to buy health care insurance, which is what would give Virginia’s AG standing. So I don’t picture standing as an issue. But I do think that preemption, the supremacy clause, and the aforementioned taxation authority makes this case a loser for the states. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [March 23, 2010, 5:54pm UTC](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432/40 "2010-03-23T17:54:51Z")
I don’t really see how that gives Virginia standing. Virginia has no jurisdiction over federal taxes. [Previous page](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432.md?page=1) [Next page](https://boards.straightdope.com/t/ten-republican-state-ags-to-sue-over-health-bill/533432.md?page=3)