The Healthcare Reform Bill Has Passed: Let the Lawsuits Begin

As predicted, states and individuals have initiated legal challenges to the new healthcare reform law, seemingly before the ink on the president’s signature had even dried.

I won’t repeat the arguments for the position that the law is unconstitutional. In the linked blog post, I cover the basics of many of the legal issues involved, and the arguments and counter-arguments concerning the constitutionality of the healthcare reform law. The issue has been discussed extensively elsewhere.

But few of the other blogs discussed an interesting new wrinkle in the opposition of state governments to the law. Many states have already passed or proposed laws which seek to limit the scope of the new law’s impact in the respective states. This is almost certainly going to result in legal showdowns between the state and federal governments addressing issues of federalism, supremacy of federal law, and states’ rights.

Several state attorneys general have filed lawsuits alleging that the new law is unconstitutional. This was expected, as these attorneys made their intentions very clear, before the bill was passed and signed into law.

What is a bit surprising, however, is the nature of some of the arguments that the states are making. In addition to the standard arguments that Congress lacks the constitutional authority to pass such a law (particularly the “individual mandate,” which some argue is actually just a tax incentive), that it gives the federal government power that is traditionally reserved to the states, and that it imposes an unconstitutional tax, there is one that came way out of left field: an argument that it violates the constitutional requirement that the federal government guarantee that the states have a “republican form of government.”
This provision of the constitution is interesting in its vagueness. The constitution provides absolutely no guidance as to what constitutes a “republican form of government.” It seems clear that states would not be allowed to establish monarchies or other authoritarian regimes, but where to draw the line is not clear.

Furthermore, the only time the issue has been before the Supreme Court, during Rhode Island’s Dorr Rebellion in the 1840s, the Court declined to interfere, essentially holding that this is a “nonjusticiable” (incapable of being examined by the courts) protection.

Another major issue with these lawsuits filed by states is that they might not have standing to bring most of the claims that they are filing. In order to have standing, and therefore be able to file suit, a party must have suffered some actual legal harm that the courts can address. Considering that the first provisions of the law don’t take effect for about six months, and the “individual mandate” doesn’t take effect for four years, it’s unlikely that anybody, let alone state governments, can claim that they’ve been injured by the law.

And even once these provisions take effect, individuals might have standing to challenge the mandate (though their actual chances of success in these challenges is another matter), it seems unlikely that state governments would be able to argue that they’ve suffered any injury as a result of the individual mandate, and therefore have standing to challenge it.

So, what do we make of all this? Is the new law unconstitutional? My gut says that almost all of the provisions of the law will be upheld by the Supreme Court, when (not if) the challenges get to that point.  But, of course, it’s impossible to predict what the Supreme Court will do with total certainty.

Whatever happens, it’s going to be an interesting ride.

By: Rusty Shackleford