The Republican plan to repeal health care reform is already facing broad
. So now we pivot to another GOP strategy for battling
reform: court challenges. Republicans are threatening a challenge to
health care's legality in the Supreme Court, and state-level attorney generals are moving to try and block the laws from taking effect in
their states. Here are the plans conservatives are suggesting and the
counter-arguments brandished by liberals.
How to challenge health care in court
- States Can Block It Law Professor Randy Barnett explains
in the Washington Post how individual states can block health care:
"Make it unconstitutional. Article V of the Constitution gives state
legislatures the power to require Congress to convene a convention to
propose an amendment to the Constitution. If two-thirds of state
legislatures demand an amendment barring the federal regulation of
health insurance or an individual mandate, Congress would be
constitutionally bound to hold a convention."
- Unprecedented Insurance Mandate The Chicago Tribune's Dennis Byrne asks,
"Can the federal government make you buy a specific good or service?"
He writes, "All kinds of analogies are dragged forth to rationalize
this unprecedented power. The most frequent is: States, including
Illinois, require you to buy car insurance. It's not quite the same,
though. Driving a car is optional; it's a choice you make. Hardly so
with mandated health insurance. There's no way you can escape it; the
Internal Revenue Service will hunt you down and fine or jail you."
- Can IRS Really Regulate Insurance? 24/7 Wall Street's Douglas McIntyre says
that the IRS will regulate some parts of the reform, such as
insurance-related taxes. "Some portions of Americans do not pay their
taxes. People with incomes below a certain level are not always
required to file with the IRS on an annual basis at all. The use of the
IRS as a health care monitoring agency is imperfect at best."
- Possible If GOP Sweeps Elections Legal blogger Ilya Somin concedes,
"The Supreme Court is reluctant to take on the political branches of
government on major issues that are a high priority for Congress and
the president. When it has done so in the past (as in the 1930s), it
has usually lost." However, "If majority opinion continues to oppose
the bill and Republicans make big gains in November as a result, the
courts might be less hesitant to strike it down. They will not face any
political retribution if they strike down a bill that most of the
public and a new congressional majority actually opposes. Indeed, their
public standing might even increase if they did so."
Why court challenges will fail
- Mandates Are Constitutional The Daily Beast's Adam Winkler defends
the Constitutionality of the mandate. "Because the individual mandate
is a tax provision that promotes the general welfare, it is within
Congress’ taxing power. This is one of broadest grants of authority the
Constitution gives Congress." He quips, "In fact, the Founding Fathers
themselves included an 'individual mandate' in a law way back in 1792."
They wrote a law requiring "free able-bodied" serve in militias--with a
gun they had to buy on their own.
- Courts Give Congress Power Here The New York Times' John Schwartz writes,
"The broad extent of the government’s power to regulate interstate
commerce has been recognized since the Roosevelt administration. In
fact, courts have backed Congress’s ability to regulate under the
Commerce Clause of the Constitution, even when the issues might not
seem, at first blush, to even involve interstate commerce at all."
- Can't Be Challenged Until 2014 The Washington Independent's David Weigel reports,
"The problem with a challenge, say conservatives, is that the mandate
for health care — an idea with origins on the right that has become
anathema ever since its implementation in Massachusetts — will not take
effect until 2014. Whether attorneys general can successfully challenge
the mandate until then is unclear." By then, the anti-health care fire
will have died down considerably.
- Winning Isn't the Real Reason To Challenge The Atlantic's Marc Ambinder says conservatives get it. "The chances of success in the Supreme Court are low, but the point of
the lawsuits isn't legal -- it's political. It advances the politics
of conservative jurisprudence, and the political ambitions of
conservatives, and it keeps the legislation itself in a state of
suspended political animation."
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