We knew a lot of state AG’s were going after the health care bill, but now we know that outside counsel will be doing the heavy lifting.Baker Hostetler’s David Rivkin, Jr. and Lee Casey had been loudly making the case that the health care legislation would be unconstitutional; now that it has passed, they’ll be leading the charge in court, The National Law Journal reported. Rivkin and Casey have signed on to represent several of the states that plan to claim the reform is unconstitutional.
The Sunshine State of Florida will act as lead plaintiff. Rivkin and Casey both have experience making arguments for those who lean right — they worked in various capacities in the Reagan and George H.W. Bush administrations, the article said.
NLJ: Florida’s lawsuit will make three claims, Rivkin said: that Congress lacks the authority to require individuals to buy health insurance; that the penalty for those who do not buy health insurance violates the U.S. Constitution’s tax-apportionment clause; and that the legislation violates the 10th Amendment by granting the federal government new powers.
Those scholars weighing in early feel like this is an uphill climb — the Supreme Court allows broad leeway to tax and interprets the reach of the interstate commerce clause to be vast.
“The attack on this bill,” Jack M. Balkin, a professor of constitutional law at Yale University, told The New York Times “is not merely an attack on the substance of this particular measure. It’s also a challenge to understandings that come with the New Deal.”
The University of Texas School of Law’s Scott Powe told Tex Parte there is no constitutional ground for challenging the reform. “The mandate is a tax; you don’t have to buy insurance.”
Constitutional scholar and UC Irvine dean, Erwin Chemerinsky, said though the idea that people should have the right to not buy health care is “rhetorically appealing” there still “is not case law, post 1937, that would support an individual’s right not to buy health care if the government wants to mandate it.”
But clearly Rivkin, Casey and a slew of AG’s disagree. And they are not totally alone — Georgetown Law’s Randy Barnett told the NYT that a constitutional challenge is a “serious argument that might have success,” but cautioned that a court could strike down the requirement that individual’s purchase insurance or be taxed but still leave the rest of the law intact.
So we shall see how it turns out, but no matter what, the legal fight starts today.
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