Tuesday, April 6, 2010

Attorney General Cuccinelli's Challenge of the Patient Protection and Affordable Care Act

There have been few debates as contentious as the one surrounding President Obama's health care legislation.

Now that the Patient Protection and Affordable Care Act has been enacted, the discussion has shifted from the political arena to the legal arena.
Virginia immediately assumed a prominent place in the evolving legal wrangling, as Attorney General Ken Cuccinelli filed suit alleging that the Act's "individual mandate" (the requirement that almost all individuals purchase health insurance or else face a penalty in the form of an additional federal tax) is unconstitutional.

You can read the Attorney General's suit -- styled as a Complaint for Declaratory and Injunctive Relief, and filed in the federal court for the Eastern District of Virginia -- here.

Thirteen other state attorneys general filed a separate lawsuit in Florida challenging the constitutionality of other aspects of the health care legislation (their Complaint is here).
Legal commentators have quickly penned a variety of analyses of the Virginia and consolidated lawsuits. A key question is whether the constitutional objections will carry water.

One of the best summaries of the legal issues involved, which helpfully includes arguments on both sides of the issue, is at the New York Times's Room for Debate blog, here. A sampling of the perspectives:

Jack Boykin argues that the law is a constitutional exercise of Congress's taxing power:
"The Constitution gives Congress the power to tax and spend money for the general welfare. This tax promotes the general welfare because it makes health care more widely available and affordable. Under existing law, therefore, the tax is clearly constitutional ... Many important and popular government programs are based Congress’s ability to give incentives through taxation and redistribute tax revenues for public purposes. To strike down the individual mandate the Supreme Court would have to undermine many years of precedents justifying these programs that stretch back to the New Deal (and in the case of the rules for direct taxes, to the very founding of the country)."
Randy Barnett begs to differ, and he argues that the affirmative requirement to purchase health insurance (or face a penalty in the form of a tax) is qualitatively different than any prior legislation:
"Congress has never before mandated that a citizen enter into an economic transaction with a private company, so there can be no judicial precedent for such a law. Telling someone how they must do something is one thing; commanding that they must do something is entirely different."
James Blumstein is more circumspect in predicting the legal outcome than either Boykin or Barnett. Blumstein emphasizes the multiple layers of constitutional analysis that the courts will need to consider when addressing the individual mandate:
"The states’ constitutional challenges to health reform are serious and should not be treated dismissively. But given the expansion of federal power since 1937, one should review the states’ claims with some healthy skepticism. For the states to succeed in having the law declared unconstitutional, the Supreme Court would have to modify significantly existing analysis and doctrine surrounding the Commerce Clause. It is fair, however, to ask whether the required purchase of insurance is a regulation of commerce. Previous cases have all involved negative prohibitions on private conduct, such as restrictions on growing wheat for home consumption and on growing and using marijuana for medical purposes. Is the affirmative mandate substantially different from a negative prohibition? In the abstract, perhaps, but Congress can enact legislation that is necessary and proper for implementing permissible legislation."
As these cases wind their way through the system, it will be interesting to see how both liberal and conservative jurists frame their analyses: we've heard from the professors and commentators, now let's hear from the judges and justices.