Having failed to block enactment of health insurance reform, Republicans have turned to the courts to obstruct implementation. From a legal standpoint, the complaints filed in Florida and Virginia by 14 state attorneys general are legally flimsy and transparently political. Plainly, these suits were crafted, not to prevail in court but to continue a political messaging strategy of stoking fears that the legislation portends a vast and unprecedented "government take-over" of health care delivery.
Put aside the defense in Virginia Attorney General Kenneth Cuccinelli's filing of his state's "nullification" law, which Reagan Solicitor General Charles Friend and other conservative experts dismiss as "preposterous." Ditto the Florida suit's grievance that states cannot afford the Medicaid expansion prescribed by the new law, even though the law ensures federal assumption of all such costs through 2017 and 90% through 2020. These legally vacuous claims appear to have been inserted as procedural tactics -- to bolster the attorney general plaintiffs' legal authority to ever get these cases into court. Their aim is to secure a forum in which to trumpet the sole argument in which the media and the electorate have shown any interest: their constitutional objection to the requirement that Americans who can afford health insurance purchase it or pay a tax. But state governments will in no way be financially or otherwise harmed by this requirement. Hence, applicable law casts grave doubt over the legal "standing" of attorneys general to assert objections on behalf of hypothetical individual residents who may (or may not be) aggrieved, when the mandate takes effect in 2014.
Apart from the likelihood that the attorney generals' suits may well be dismissed with no consideration of the individual insurance mandate issue, the historical record makes clear how politically motivated these challenges are. Such a provision has been, as a July 2009 Federalist Society memorandum acknowledges, "a component of most health care reform plans proposed over the years, starting with President Bill Clinton's 1993 health care reform proposal." And not just Democratic bills. The Republicans' counter-proposal to the Clinton bill, the Consumer Choice Health Security Act, included an individual mandate drawn from a 1990 Heritage Foundation proposal. So did a bill the Wyden-Bennett Healthy Americans Act introduced in the Senate in 2007 and 2009 with with a total of ten Republican signatures, not counting Arlen Specter. And of course, the Massachusetts universal coverage law, which served in significant measure as a model for the new federal plan, included an individual mandate, which has yielded universal acceptance with 97% of Massachusetts residents in compliance -- and was vigorously defended by its prime proponent, then-Governor Mitt Romney.
The reasons for the success of the mandate in Massachusetts are the same common-sense, uncomplicated reasons supporting the constitutionality of the federal version. Mandatory insurance has been a staple of universal health care proposals for simple, common-sense reasons. A nontrivial minority of citizens decides to save the cost of insurance premiums. When an accident or illness makes that a bad bet, the rest of us must pick up whatever part of the emergency room tab they cannot. Findings in the Senate bill put the annual cost of providing uncompensated care to the uninsured at $43,000,000, and the annual hit to individual family premiums at $1,000.
Does the Constitution preclude Congress' attempt to fix this problem? Republicans claim that indeed it does. Their arguments boil down to a single sound-bite, repeated endlessly: Decisions to forego purchasing health insurance are "non-actions" or "non-activity," they say, hence not "activity," therefore not "commercial activity" subject to Congress' authority to regulate interstate commerce. Such verbal gimmickry is legally unpersuasive, as UCLA law professor Eugene Volokh, a respected conservative, recently cautioned a Heritage Foundation audience; in requiring insurance companies to take all comers "without regard to preexisting conditions," Volokh explained, it is "quite plausible" that Congress could ensure that people cannot "adversely select out [of the risk pool] by waiting till they get sick or get close to it before they buy." More authoritatively, in the same vein, Justice Antonin Scalia elaborated in an important 2005 decision, "Where necessary to make a [statutory program] regulating interstate commerce effective, Congress may regulate even . . . activities that do not themselves substantially affect interstate commerce." The individual insurance mandate does just that. To achieve universal coverage, it requires universal buy-in. Indeed, the complaint filed in Richmond's Federal District Court by Virginia Attorney General Kenneth Cuccinelli acknowledges that "The individual mandate is an essential element of the act . . . without which the statutory scheme cannot function" -- a perfect statement of why the mandate must be upheld under Justice Scalia's exposition of Congressional authority.
Reform opponents concede that Congress could, by exercising its constitutional authority to tax and spend for the general welfare, lawfully achieve universal coverage and buy-in through a governmental insurance system supported by tax revenues. But Congress, as stated in the Findings, chose instead to "build upon and strengthen the private employer-based health insurance system." How seriously can conservatives expect to be taken, when they assert that the only type of universal health system America may constitutionally adopt is the very single-payer, government "take-over" they have consistently decried? Indeed, if, as they warn, the burden of mandatory health contributions were -- in principle -- oppressive and unfair, Medicare and Social Security taxes would raise similar constitutional concerns. Of course, since 1937, such questions have been heard neither in the courts nor Congress. The reason is simple: most people regard these mandatory contributions -- in light of what they expect to receive in exchange -- as a bargain not a burden.
Should a challenge to the individual mandate eventually reach the Supreme Court, a majority of its members appear almost certain to grasp that connection and uphold the new law. The Court's most devout conservative, Justice Clarence Thomas, may be the only exception; in a 1995 case he opined that the Court in 1937 took a "wrong turn" when it broadly construed federal authority to regulate commerce, thereby freeing Congress to enact the New Deal, the Great Society, and the civil rights laws. But Justice Anthony Kennedy, who usually votes with the conservative bloc, scolded Thomas for "reverting to an understanding of commerce that would serve only an 18th-century economy;" it would be hard to square Kennedy's rebuke with a vote to strike down health care reform. And, as noted above, Justice Scalia, the conservatives' intellectual leader, wrote what is probably the single strongest precedent supporting Congress' prescription of mandatory insurance as essential to securing universal coverage. The sparse records of the newest appointees, Chief Justice John Roberts and Associate Justice Samuel Alito, throw little reliable light on how they would react to a health reform challenge. But unless Kennedy and Scalia were both willing to bend their recently articulated arguments into pretzels, their votes plus those of the four liberals (Justices Stevens, Ginsburg, Breyer, and Sotomayor) will assure Obamacare a permanent place in the United States Code.
But even though the current Supreme Court would likely reject such a challenge to the health care reform law, reform supporters can hardly afford to sit back and let the litigation take its course. The state nullification laws and attorney generals' lawsuits may be no more than political messaging exercises. But on that level, they can, if not effectively countered, help reinforce and legitimize rants that cast universal coverage as an unprecedented invasion of individual liberty. Knocking down the Right's bogus constitutional attack on health care reform requires a robust grass roots response as much or more than a lawyerly answer in court.