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Challenges could burst healthcare triumph

By MICHAEL KIRKLAND   |   March 22, 2010 at 2:51 PM   |   Comments

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WASHINGTON, March 22 (UPI) -- Democrats are sky high, celebrating the passage of healthcare reform against ferocious opposition from Republicans, tea partiers and the health insurance industry.

But looming challenges in a legal system dominated by a conservative U.S. Supreme Court threaten to bring them crashing back down to earth.

At least three state attorneys general, all Republicans, are vowing to challenge the new U.S. healthcare law in court, and there are indications as many as 12 state attorneys general may join the fight.

With the Supreme Court taking a harder line on the power of Congress under the commerce clause of the Constitution -- the main authority used by Congress to enact healthcare reform -- the challengers may meet with some success.

The attorneys general say they will file suit once U.S. President Barack Obama signs the bill into law, and are pledging to take their battle all the way to the Supreme Court, The Christian Science Monitor reported.

Florida Attorney General Bill McCollum has been one of the most vocal opponents of healthcare reform since last year.

In December, he said he was ready and willing to take any provision of a new healthcare law into court, particularly "the individual mandate that a person must pay a fine or tax if he or she does not obtain federally required healthcare insurance. I have grave concerns about the constitutionality of this mandate. Such a 'living tax' is worrisome because it would be levied on a person who does nothing, a person who simply wishes not to be forced to buy health insurance coverage."

On Feb. 25, after the White House health summit, McCollum said it looked like the individual requirement to carry insurance would be part of the federal package.

"After conducting a legal review of the individual mandate," McCollum said in a statement at the time, "it is very clear to me this mandate violates the U.S. Constitution because Congress cannot penalize people for doing nothing at all. This is a tax on living, and if the individual mandate is in the final bill signed by the president, I will file a lawsuit on behalf of the citizens of Florida to protect our constitutional rights."

On March 16, McCollum repeated his outrage at the individual requirement, and said he was forming a coalition of Florida agencies to determine the impact of reform on the state's citizens. He also sent a letter to all state attorneys general inviting them to join in a challenge.

Attorney General Henry McMaster of South Carolina announced during the weekend he was prepared to file suit against the landmark law.

"The healthcare legislation Congress passed (Sunday) is an assault against the Constitution. A legal challenge by the states appears to be the only hope of protecting the American people from this unprecedented attack on our system of government," he said in a statement.

McCollum and McMaster have been joined by Virginia Attorney General Ken Cuccinelli II. Cuccinelli said Monday he would file suit challenging the constitutionality of the law.

In American Spectator magazine, The Washington Post reports, Cuccinelli wrote the healthcare reforms "violate the plain text of both the Ninth and 10th Amendments."

The Ninth Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The 10th says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

In addition to Cuccinelli, McCollum and McMaster, the attorneys general in Alabama, Nebraska, Texas, Oklahoma, Pennsylvania, Washington, Utah, North Dakota and South Dakota indicated they would join the fight.

In detailing Cuccinelli's opposition, the Post published an analysis by Randy E. Barnett, a respected author who teaches constitutional law at Georgetown University.

Barnett expressed his own doubts about the success of the individual mandate: "Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power 'to regulate commerce ... among the several states.'"

Barnett sees the U.S. Supreme Court giving the law some leeway in that healthcare affects interstate commerce. "But the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity," Barnett says. "That is unprecedented."

An analysis by United Press International in January said the success of any commerce clause challenge on healthcare would depend on whether the modern Supreme Court follows the lead of the Supreme Court under the late Chief Justice William Rehnquist, which pinned back the commerce clause in the 1990s and 2000.

The Commerce Clause, in Article I of the Constitution, gives Congress the authority to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

A challenge to the new healthcare reform law is strengthened as well by the high court's jurisprudence, which for the most part recognizes the regulation of insurance, an intangible good, is the province of the states, not the federal government. The federal government has traditionally regulated the interstate commerce of tangible goods.

For much of its history, the commerce power of Congress was limited to the regulation of the movement of tangible goods across state boundaries through roads and rivers. That power was massively expanded in 1942's Wickard vs. Filburn.

In Wickard, the Supreme Court ruled the commerce clause, for the first time, allowed the regulation of goods produced and consumed solely within a state.

Wickard opened the floodgates, and for more than 50 years Congress used the commerce clause to enact a vast number of laws that had only a tangential connection to interstate commerce.

However, in 1995 the Rehnquist Supreme Court unexpectedly reined in the scope of the commerce clause. In a 5-4 vote, the justices struck down the federal Gun-Free School Zones Act of 1990, which forbade anyone from knowingly carrying a firearm in a school zone.

In the majority opinion, Rehnquist said the law was "invalid as beyond Congress' power under the commerce clause."

The "possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have ... a substantial effect on interstate commerce," the opinion said.

A second major blow to congressional commerce power came in 2000's U.S. vs. Morrison, when the same five-justice majority struck down provisions of the federal Violence Against Women Act.

A woman who said she had been raped by two other students at Virginia Polytechnic Institute filed suit for damages under the civil provisions of the federal act. But the narrow Rehnquist majority said the civil provisions of the act "cannot be sustained under the commerce clause or section 5 of the 14th Amendment," which allows Congress to use legislation to enforce "the constitutional guarantee that no state shall deprive any person of life, liberty, or property, without due process or deny any person equal protection of the laws."

The only hitch on the steady curtailment of commerce clause power came in 2005's Gonzalez vs. Raich when a couple of conservatives apologetically joined the four-member liberal bloc to rule 6-3 that Congress had the authority to regulate home-grown quantities of prescribed marijuana under its commerce power.

However, despite Raich, the weight of Supreme Court jurisprudence seems to favor a commerce clause challenge in a healthcare reform case brought by McCollum or anyone else with standing.

Three of the five-member majority justices in Lopez and Morrison -- conservatives Antonin Scalia and Clarence Thomas, and especially moderate Anthony Kennedy -- are still serving on the high court.

The other two are gone, but their successors are equally conservative, if not more so.

One word of caution for those filing legal challenges to key healthcare law provisions: Under the law, individuals refusing to buy health insurance will face fines of at least $750 a year. But the penalty doesn't kick in until 2014.

The Supreme Court has been reluctant in the past to rule on laws when challengers cannot show an "injury" -- something that usually doesn't occur until a law goes into effect.

© 2010 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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