Lawyers vs. Health Reform

Article excerpt

Byline: Dahlia Lithwick

Why the court challenges will fail.

Virginia's Attorney General, Ken Cuccinelli II, is a man in a big, big hurry. He had promised to challenge the constitutionality of the newly enacted health-care legislation "as soon as the ink is dry" on the president's signature--and less than five minutes after the signing of the bill, Cuccinelli's staff sprinted over to Richmond's federal courthouse with a lawsuit intended to block the measure.

While 13 other state attorneys general also hustled to file a joint lawsuit, in Florida, Cuccinelli opted to file his own suit, tagged to a brand-new Virginia law that provides that "no resident of this Commonwealth -- shall be required to obtain or maintain" an insurance policy. In his nine-page complaint, Cuccinelli acknowledges that the federal mandate to which he objects doesn't even kick in until 2014. (Many legal scholars don't be-lieve challenges can be filed before that time.) Speedy Cuccinelli also cops to the fact that his chief objection to the law--that a federal statute is stepping all over a Virginia law--can't readily get past the U.S. Constitution's Supremacy Clause, which expressly states that federal law shall be the "supreme Law of the Land." But Cuccinelli maintains that the Virgin-ia statute doesn't violate the Supremacy Clause because the whole health-reform statute is unconstitutional.

As the state challenges to the president's health-care law have been filed, legal scholars have argued about their probability of success in blogs and on editorial pages. The suit filed by the 13 attorneys general makes a different legal argument from Cuccinelli's and takes aim at the government insurance mandate, taxation authority, and the expansion of Medicaid. Most legal experts agree that these arguments are unlikely to prevail in the courts, and the more candid supporters of the lawsuits acknowledge that they merely hope the courts might be open to long-shot arguments. Given the relative novelty of the individual mandate and the fact that the current Supreme Court is as conservative as it's been in nearly a century, the arguments aren't all completely hopeless. But "lack of hopelessness" isn't usually the basis for filing major lawsuits.

Cuccinelli's claim, however, is coming in for extra-special scorn from scholars on both the right and the left. In a call with reporters, Erwin Chemerin-sky, dean of the UC Irvine School of Law, pointed out that, as with the battle over desegregation in the '50s and '60s, "states can't just block the implementation of federal laws. …