Constitutional challenge to health care reform-good luck with that

It took less than 24 hours for various states’ attorneys general to start the saber rattling. Apparently,  at least 10 states are lining up to litigate constitutional challenges to the historic passage of health care reform.

The talking points memo was apparently released early. My understanding from a casual review of the media stories is that various challengers claim that Congress lacks the power to require individuals to take actions to obtain health insurance.  The story goes that the Commerce Clause of the United States Constitution (“The Congress shall have power ****To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”) does not allow Congress to require citizens to affirmatively act.

As I understand the argument, someone who doesn’t buy insurance isn’t affirmatively affecting interstate Congress. As a result, Congress has no power to regulate these non-actors  through federal legislation. Legal geeks know that the power to regulate interstate commerce is far-reaching. There are few limits on that power and very few acts that don’t otherwise impact interstate commerce.

So it’s an interesting theory. Novel, really. But wrong. People who don’t have insurance are only non-actors as long as they don’t seek medical care. But once they show up in an emergency room,  apply for benefits, or otherwise incur medical care costs, they are impacting interstate commerce. Thus, it’s facetious to claim that they are not affecting interstate commerce.

But there is a bigger technical problem here which each of these political attorneys general know. It’s such a big problem that it makes the mandate argument frivolous.  In order to pursue a claim, a party going seeking relief in court must be able to claim a real legal injury. The label in legal jargon is “standing.”  There is an awful lot of case law on standing out there. Much of it comes from environmental law with courts deciding who has suffered legal injury and who has standing.

As I understand it, the current version of the health care reform bill doesn’t mandate coverage until 2014. So no one has been injured yet.

Sorry cowboys, if you file the suit now, you won’t be able to establish legal injury or standing. And by the way, I’m sure all of you are very concerned about crowding the courts with frivolous lawsuits. And for all of the times you’ve denounced frivolous lawsuits, you would never, never, never file one yourselves.  Right?

The wisdom of requiring legal injury is illustrated by the opponents’ two-pronged approach to fighting health care reform.  At the same time that the GOP attorneys general are revving up the lawsuit teams, the Congressional republicans are yammering about a repeal.  They’re also laying plans to tie up the reconciliation bill in the Senate.  As it’s a long way until 2014, how can any court ruling made today be definitive?

This scenario potentially raises an interesting series of law-geek questions under the political-question prong of the abstention doctrine. I don’t have time to think about that on this busy day. And besides, you would have to be a serious law geek to be interested. And even if you were, you would probably want to read stuff by people much smarter than me.

In any event, if the courts will truly call this on the law and not take thinly-veiled political sides, this case gets flushed quickly at all levels. Of course the U.S. Supreme Court abandoned pretenses of deciding cases on legal principles. (See, e.g., Gore v. Bush)

I suppose the U.S. Supreme Court could change the law of standing to hear this premature challenge. That would lead to a radical new theory of standing. Radical changes to the standing doctrine would be a mistake because it would unleash a torrent of future litigation. You would allow all manner of excited people their day in court to litigate issues of what might happen four years from now. That would be a really bad idea.

I think the GOP AGs might want to think carefully about what they are doing. Or maybe they’re simply too desperate to reflect?