The Growing Lawsuit against Health Care Reform Measures

Many of you are already familiar with the health care bill that was signed by Obama into law in March.  We’ve recently posted a blog on the various responses that the law set off.  Like a knee-jerk reflex, immediate response to the law came in the form of numerous lawsuits, numbering about a dozen or so.  Among the most prominent of the lawsuits aimed at striking down the health care law is a lawsuit filed in a Florida federal district court by prosecutors from 13 different states.

Since the passage of the bill, the lawsuit has grown, as seven other states, as well as the National Federation of Independent Business (NIFB), have joined in the suit against the healthcare reform bill.  This makes a total of 20 states which are opposing the massive reform law, all but one of which are Republican in their leaning: Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Dakota, South Carolina, South Dakota, Pennsylvania, Texas, Utah and Washington.

The lead plaintiff for the suit is Attorney General Bill McCollum of Florida.  The AG’s suit outlines four arguments challenging the law’s constitutionality.  Of these arguments, the central focus of the debate will be whether the Commerce Clause of the Constitution grants Congress the power to pass a law which is so broad and sweeping in its scope of intrusion into personal affairs.

As the details of the lawsuit emerge, legal experts are split in their opinions as to whether the suit will ever reach Supreme Court, and whether it will succeed or not.  Lawyers who are in favor of the new health care law argue that the law is constitutional because the Commerce Clause grants Congress the power to regulate activities which, in their “aggregate” (or accumulated effect) will affect interstate commerce.  These experts contend that if people do not obtain coverage, it will inevitably affect the price of health insurance for citizens throughout the U.S, and thus should be covered by the Commerce Clause.

Those who are opposed to the law, such as AG McCollum, will be arguing that the mandatory insurance clauses of the law are unconstitutional simply because what Congress is attempting to regulate is not an “activity” at all in the legal sense of the term, and thus is not in the stream of commerce.  In the text of the Florida lawsuit, McCollum and others point out that in effect, people will be subjected to penalty not according to any action they take, but rather for their “inactivity”.  This is because the law proposes to mandate additional taxation for businesses and citizens who do not purchase health insurance premiums.

I am particularly interested in the debate as to whether not purchasing health insurance amounts to “inactivity”.  In a very well-documented opinion report on the constitutionality of mandatory health insurance, Simon Lazarus contends that the “inactivity” argument is mere semantics and verbal gimmickry.  He writes that people who don’t purchase health insurance are not “doing nothing”, but rather are taking the conscious action to skip out on health care because they believe they won’t need it.

I strongly disagree with this rationale.  I don’t think that the average American believes that they are taking a conscious action by not buying health insurance.  I think what’s going on is that a large sector of the American economy cannot even really afford to buy health insurance.  It’s not that they are choosing to forgo coverage- it’s more like many don’t really have a choice because they cannot afford it.  I’m sure if people had the resources, they’d rather purchase the premiums than remain uncovered.  After all, isn’t that the whole reason behind implementing new health care strategies, because people can’t afford it?

That being said, I still think that the lawsuits will probably not hold up in court, mainly because courts do have long history of regulating personal activities under the commerce clause.  But it does make sense to me why the legal challenges aimed at the new law characterize the reform as “an unprecedented encroachment” on state sovereignty.  It’s not only because of the broad scope of health care implications, but because they are arguing that Congress is attempting to regulate inactivity.  And “inactivity”- if that’s what you choose to call it- has never really been regulated by Congress before.