Legal Territory In Challenge To Healthcare Is "Uncharted"

Health Care

Almost immediately after the new healthcare bill passed, 13 state attorneys general readied their legal rebuttal. Not that anyone was surprised.

The constitutionality of the bill has been debated since last fall, focusing on whether it’s legal for the federal government to mandate health insurance.

National Law Journal: Those debates continue to play out now as the health insurance mandate is a prime target of two lawsuits thus far, one filed in Florida by 13 state attorneys general, and the other in Virginia by that state’s attorney general. And, the key players in the debate months ago have emerged again, with some, such as David Rivkin of Baker & Hostetler — a vocal opponent of the law — playing an active role in the litigation.

An unprecedented law is one thing, but “legal reasoning” is another, and scholars and law professors argue that the thinking behind the opposition of the bill is not so new.

NLJ: [health care scholar Mark] Hall noted that the legislation has “pages” of congressional findings on the connection between the health care crisis and interstate commerce. Those findings are clearly aimed at a major attack on the individual insurance mandate — that it exceeds Congress’ lawmaking power under the commerce clause.

“One element that’s new in the Florida suit is the states are saying, ‘We’re forced to spend a lot more money on Medicaid, which is an unconstitutional commandeering of the states,'” he explained. “They say they’re effectively stuck with Medicaid which they got into a long time ago. That’s a novel argument. I haven’t looked into it because it seems on its face so implausible. States can withdraw from Medicaid. Arizona didn’t join until the 1980s and announced last week it’s withdrawing from the children part. States can drop in and out.”

Health care reform was debated by the DOJ in 1993 under Clinton, when it concluded that Congress has the power to deal with health care to protect the interests of the American people, but it’s unclear whether the current Supreme Court (should this fight get that far) would support that notion.

Read more at NLJ.

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