News & Politics

Do Republicans Really Have a Shot at Crippling Obama's Health Care Reform with a Constitutional Challenge?

Fourteen state attorney generals are suing the federal government, charging it with a power-grabbing violation of the 10th Amendment. Can it possibly work?

No sooner had President Obama signed the health care bill into law last week than a gang of state attorneys general -- all Republicans except one -- jumped to declare it unconstitutional. By the end of the week, no fewer than 14 states had sued the federal government, charging it with a power-grabbing violation of the 10th Amendment.

Supporters of the lawsuits wrapped themselves in the sanctity of the Constitution, but they seemed pretty clearly to be politically motivated. The primary lawsuit was filed in Florida's Northern District by former Bush Department of Justice attorneys, David Rivkin Jr. and Lee Casey, partners at Baker & Hostetler, the former law firm of Florida Attorney General Bill McCollum. Joined by attorneys general from South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho and South Dakota, the lawsuit names Health and Human Services Secretary Kathleen Sebelius, Treasury Secretary Tim Geithner, and Labor Secretary Hilda Solis as defendants, accusing them of "an unprecedented encroachment on the liberty of individuals living in the Plaintiffs' respective states, by mandating that all citizens and legal residents of the United States have qualifying health care coverage or pay a tax penalty."

The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage. By imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution.

Meanwhile, Virginia Attorney General Ken Cuccinelli, who had vowed to sue over health reform "as soon as the ink is dry" (and who has previously sued the Environmental Protection Agency for its regulation of greenhouse gases), filed a separate lawsuit in his home state. ("It's more cost efficient to start the process of challenging the bill as soon as possible," Cuccinelli's office explained to the Washington Post. "There are significant costs in implementing the health care law, so if it is going to be found unconstitutional, then we can save taxpayer money and trouble by making that determination sooner rather than later.")

The various AGs joining the lawsuits wasted no time going on television to make their case. Moments after Obama signed the historic legislation, South Carolina Attorney General Henry McMaster appeared on the Fox Business Network, declaring the new law "off-the-scale unconstitutional."

"We think it, of course, is a threat to state sovereignty as well as to individual liberty," he said, as Fox simultaneously aired footage of the president hugging his fellow Democrats. "It's a matter of constitutional law and that is why we're taking this step."

"This is a quantum leap," Nebraska Attorney General Jon Bruning told Hardball's Chris Matthews on MSNBC later in the week. Next, he warned, "they could force us all to use electric cars."

At the same time, a handful of state attorneys generals who have come out and stated that they have no intention of suing the federal government over health care reform have done so to no small amount of political pushback.

On Thursday, Kentucky Attorney General Jack Conway, a Democrat, announced: "I'm not going to commit resources of the Office of Attorney General of Kentucky when budget is being cut, in a time when in last couple of years, budget is being cut 26 percent. I'm not going to commit the resources of this office to a political stunt."

Conway's announcement was in part a response to Kentucky Secretary of State Trey Grayson's declaration earlier this week that the attorney general join the lawsuits against the health care law. "Today I call on Kentucky Attorney General Jack Conway to join in this effort and file suit against the federal government for the unconstitutional overreach of its authority with the passage of this health care legislation," Grayson said on Tuesday,

"Trey Grayson's gimmick may be good 'Tea Party' politics, but it's based on questionable legal principles," Conway responded.

Meanwhile, in Georgia, Gov. Sonny Perdue announced Thursday that he intends to appoint a "special attorney general" to sue the federal government for its health care law, after he was unable to convince state Attorney General Thurbert Baker to do so. ("While I understand that the new law is the subject of ongoing debate here in Georgia and around the nation," Baker said, "I do not believe that Georgia has a viable legal claim against the United States. Considering our state's current severe budgetary crisis, with vital services like education and law enforcement being cut deeply, I cannot justify a decision to initiate expensive and time-consuming litigation that I believe has no legal merit.")

Baker's refusal to join in the lawsuits has so angered Georgia Republicans, they have threatened to impeach him.


As Americans have learned all too well in the era of John Yoo and Jay Bybee (or, for that matter, David Rivkin Jr. and Lee Casey, who have continued to defend the Bush torture program), one can always find a lawyer or legal "expert" to support one's case, no matter how spurious. But despite claims from the health care lawsuits' supporters that their case will make it all the way to the Supreme Court, other legal experts seem skeptical -- particularly given the broad authority imbued upon the federal government by the Commerce Clause.

"It would be surprising if the [Supreme Court] says Congress can't regulate people who are participating in the $1 trillion health-care market," Stanford University Law School professor David Freeman Engstrom told the Denver Post. "The lawsuit probably doesn't have legs both as a matter of precedent and as a matter of common sense."

"I think that it is clearly constitutional," said Constitutional law professor Erwin Chemerinsky of the University of California, Irvine.

Chris Hayes,The Nation's Washington editor, devoted his weekly podcast, "The Breakdown," to the subject, interviewing Columbia University law professor Gillian Metzger, who pointed out that "Congress isn't actually mandating anybody purchase insurance; all Congress is doing is saying if you don't you'll be subject to a tax or penalty -- just like if you don't purchase equipment to manage your pollution emissions you're going to be subject to a tax or penalty."

"Quite honestly, the argument that it's outside the commerce power is also pretty specious given existing precedent," she added.

The 10th Amendment of the Constitution states that "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."

It is a standard rallying cry for conservatives -- although, in the past year, states across the country have used it to challenge the reach of federal authority on issues ranging from medical marijuana to gun rights.

In a sense, the health care lawsuits are only the latest example of growing, highly politicized attempts on the right to invoke the 10th Amendment in response to any major legislative efforts by the Obama administration. (The rise of the "tenthers" as they've been called, and, of course, the Tea Party movement, are part of the same trend.) Last spring, Gov. Rick Perry made headlines when he suggested to Tea Party protesters that Texas might have to consider seceding from the Union. This followed a nonbinding resolution passed by Texas legislators reaffirming states' rights.

"I believe that our federal government has become oppressive in its size, its intrusion into the lives of our citizens, and its interference with the affairs of our state," Gov. Perry said, in support of the measure. "That is why I am here today to express my unwavering support for efforts all across our country to reaffirm the states' rights affirmed by the Tenth Amendment to the U.S. Constitution. I believe that returning to the letter and spirit of the U.S. Constitution and its essential 10th Amendment will free our state from undue regulations, and ultimately strengthen our Union."

Texas was not alone. In 2009, no fewer than 37 state legislatures introduced state sovereignty measures.

The lawsuits challenging the health care law did not spring up spontaneously. In anticipation of the Obama administration's attempts to pass sweeping health care reform, a number of states started working on similar declarations asserting that any such legislation would be illegitimate within their borders.

Currently, model legislation titled the "Federal Health Care Nullification Act," is being promoted by the Tenth Amendment Center, an organization first founded by libertarian Michael Boldin in opposition to the Patriot Act. The act seeks to "render null and void certain unconstitutional laws enacted by the Congress of the United States, taking control over the health insurance industry and mandating that individuals purchase health insurance under threat of penalty."

Elsewhere, Republican lawmakers have vowed to repeal the health care legislation. "Repeal and replace will be the slogan for the fall," Kentucky Republican and Senate Minority Leader Mitch McConnell told CNN's John King on Tuesday.

A Political Stunt

In many ways, it doesn't seem to matter whether the claims of unconstitutionality have any merit. Like the multiple lawsuits filed by birther Orly Taitz challenging the legitimacy of Barack Obama's presidency, a number of the attorneys general pushing this seem to be doing so for publicity and political gain.

South Carolina Attorney General Henry McMaster, for example, is running for governor; visitors to his campaign Web site are treated to a splash page that boasts the AG is "Leading the Fight to Stop Obamacare."

"ObamaCare is unconstitutional and Attorney General Henry McMaster is leading the fight to stop it," the Web site announces.

He's fighting to protect our personal freedom, our state sovereignty and our values.
A proven conservative leader - Henry has the courage to act and the ability to win.

Another attorney general with higher political aspirations is Florida's Bill McCollum, whose campaign Web site also prominently features his fight against Obamacare. "Bill McCollum is fighting for Florida," the site says, inviting visitors to "Join the Fight!"

Some Floridians are not convinced. An editorial in the Sarasota Herald Tribune this week called the attorney general's lawsuit a "divisive, overly political waste of state resources."

"If McCollum wants to pursue his quixotic quest as a private citizen, fine. But his obligations are different as an attorney general of Florida, a state carried by Barack Obama in the 2008 election. McCollum has a duty to use the resources of his office -- paid for by taxpayers -- in the public interest."

What's more, the editorial points out, "Taxpayers should also question the propriety of hiring McCollum's former law firm, Baker and Hostetler of Orlando, to work on the lawsuit for McCollum and 12 other attorneys general. The firm will be paid whether the states win or lose."

Liliana Segura is an AlterNet staff writer and editor of Rights & Liberties and World Special Coverage. Follow her on Twitter.