Pubdate: Tue, 23 Mar 2010 Source: New York Times (NY) Copyright: 2010 The New York Times Company Page: A20 Contact: http://www.nytimes.com/ Details: http://www.mapinc.org/media/298 Author: John Schwartz Referenced: http://www.angeljustice.org/downloads/Gonzales%20v%20Raich%20Supreme%20Court%20Decision.pdf Bookmark: http://www.mapinc.org/people/Obama Bookmark: http://www.mapinc.org/people/Angel+Raich HEALTH MEASURE'S OPPONENTS PLAN LEGAL CHALLENGES Officials in a dozen states who oppose the health care bill say they hope to block it in court by arguing that requiring people to buy health insurance is an unprecedented intrusion by the federal government into people's lives - the equivalent of going a step beyond simply regulating automobiles to requiring people to buy a car. They add that the bill would rewrite the relationship between federal and state government, and they plan to make their argument in court as soon as the legislation becomes law. "We plan to file the moment Obama signs the bill," Greg Abbott, the Texas attorney general, wrote on his Facebook page. But constitutional scholars suggest that such cases would likely amount to no more than a speed bump for health care legislation. The reason, they say, is that Congress has framed the mandate as a tax, which it has well-established powers to create. And Congress's sweeping authority to regulate the nation's economy, they add, has been clear since the 1930s. "The attack on this bill," said Jack M. Balkin, a professor of constitutional law at Yale University, "is not merely an attack on the substance of this particular measure. It's also a challenge to understandings that come with the New Deal." Florida's attorney general, Bill McCollum, is leading the effort to block the new bill, saying that it "violates the U.S. Constitution and infringes on each state's sovereignty." Mr. McCollum pledged to fight alongside attorneys general from Alabama, Nebraska, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington. Louisiana announced it would join the suit as well, and Virginia, which has passed a law barring government mandates to buy health insurance, has said it will also file suit. Their arguments in court are likely to focus on the scope of the mandate and the intrusion of the federal government into state affairs, said David B. Rivkin Jr., a lawyer advising Florida who served in the Justice Department under President Ronald Reagan and the first President George Bush. "This really goes to the heart of the constitutional architecture that the framers have devised" between the government and its citizens, Mr. Rivkin said. He also said that it would represent "a qualitatively unprecedented expansion of federal authority at the expense of the states." Whatever people feel about the worthiness of the bill's goals, "the Constitution does matter," he added. Prof. Randy E. Barnett, who teaches constitutional law at Georgetown University Law Center and has been critical of the bill, said a constitutional challenge to the individual requirement to purchase insurance is a "a serious argument that might have success." Still, Professor Barnett was careful not to predict that the opponents of the bill would block the legislation completely. He said that even if a court were to strike down the requirement to buy insurance, such a ruling would still be likely to leave other elements of the law in place. Professor Balkin of Yale said the mandate did not run afoul of the Constitution because Congress had carefully structured it as a tax - and taxes are fully within its power. "People have to pay taxes all the time," he said. "This is not new." Courts generally defer to Congress's taxation decisions and definitions so long as they constitute a "genuine revenue-raising device," Professor Balkin said, and so the health insurance mandate is likely to pass muster. The broad extent of the government's power to regulate interstate commerce has been recognized since the Roosevelt administration. In fact, courts have backed Congress's ability to regulate under the Commerce Clause of the Constitution, even when the issues might not seem, at first blush, to even involve interstate commerce at all. That is why Roscoe Filburn, a small farmer in Ohio, had to destroy wheat that exceeded production quotas in a 1942 case, even though he was growing the wheat for his own use and had no intention to sell it. And in 2005, the Supreme Court ruled that Congress could prohibit medical marijuana, despite some state laws that allow it. The people who had filed suit argued that they had not bought the marijuana, but the Supreme Court said the Commerce Clause still applied. "In both cases, the Supreme Court said the cumulative effect of your attempt not to participate in the market has an effect on markets - and we can regulate it," Professor Balkin said. Erwin Chemerinsky, a constitutional scholar and dean of the University of California, Irvine School of Law, said the argument that people should have the right not to buy health care was "rhetorically appealing" because of its paean to personal freedom. But "individual freedom not to purchase health care, I think, has no basis in Constitutional law." In fact, Professor Chemerinsky added, "there is no case law, post 1937, that would support an individual's right not to buy health care if the government wants to mandate it." Congress has often taken actions that impinge on personal freedom for a national purpose, he noted, including the Civil Rights Act of 1964, which required hotels and restaurants to serve minorities. "If the court stays true to its Commerce Clause jurisprudence of the last 15 years," Professor Chemerinsky said, "I think this will be upheld." - --- MAP posted-by: Richard Lake