Whatcha doing, AG Cuccinnelli?

Virginia against the Patient Protection and Affordable Care Act

The latest issue seems to be not a criticism of the law's logic but of whether or not the federal government can enact law that requires state's citizens to purchase something and then fines them if they don't. Earlier this year, likely in the face of the coming healthcare law, the Virginia Senate amended its code to explicitly protect its citizens from such purchases and penalties (unless the health insurance is required for enrollment in a university or part of a state-administered program to receive federal Social Security Act funds).

According to the Virginia Attorney General’s lawsuit against the U.S. Secretary of Health, congress has no authority to enforce the “individual mandate” portion of the healthcare law because it doesn’t fall under Congress’s powers granted in the Commerce Clause of the Constitution. And because, the lawsuit says, the individual mandate is essential and inseparable from the entire law, the law is unconstitutional and can be enforced neither in toto nor in part.

Though a court is more likely than not to uphold the congressional regulation under the category of activities that assert “a substantial impact on interstate commerce,” which meets Commerce Clause jurisprudence set by the Supreme Court, the healthcare law might also be seen as a legitimate exercise of Congress’s authority to tax and spend for the general welfare of the country (the first in the list of powers delegated to Congress by the Constitution) in combination with a decision to deny certain federal money to states if they don’t comply with a federal directive, also recognized by the Supreme Court as legitimate under the Spending Clause.

I think the state Attorneys General who are filing lawsuit face big legal roadblocks: the Supremacy Clause of the Constitution is not on their side, and nether are Court precedent and the welfare of citizens.



Related links:

Congressional Research Service
Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis, July 24, 2009

American Constitution Society, Issue Brief
“Mandatory Health Insurance: Is It Constitutional?” by Simon Lazarus

Virginia
Virginia AG Cuccinnelli’s lawsuit against Sec of Health & Human Services Kathleen Sebelius
RichmondSunlight’s record of the amendment to the Code of Virginia
Code of Virginia

Social Security Act
Title XIX—Grants to States for Medical Assistance Programs
Title XXI—State Children's Health Insurance Program

Constitution of the United States
Article 1, Section 8: Tax and Spend and “Commerce Clause”

Supreme Court
Wickard v. Filburn



Note: It's 5 August 2011. Last night I found the notes above, dated 26 March 2010, which somehow escaped getting added to the blog. I'm backdating this post to the day it was written, but I really just put it up today. #cheating. (That's how you know I'm cheating; I wouldn't have deigned to speak in hashtag back then. #TooCoolForTwitter) The origins of these notes: A friend brought up, via my Facebook wall, the constitutionality of income tax when I admittedly got a bit case law nerdish. After reining in the stampede of citations, I ended my part of the conversation with "Don’t get me started on the individual mandate lawsuit filed by Virginia’s AG." As in, hee hee, aren't I silly for carrying on about law? I, um, subsequently went straight to work on carrying on.