The Big Question: Is the healthcare lawsuit a legal issue or a stunt?


Ilya Shapiro,
Cato Senior Fellow in Constitutional Studies and Editor-in-Chief, Cato Supreme Court Review, said:

The challenge is very real—and necessary—but we are in uncharted territory here so it's difficult to predict how courts will react.
 
The strongest and most important legal argument attacks the constitutionality of the individual mandate to buy a certain approved health insurance plan. Never before has the federal government—or any other—tried to force Americans to buy a particular good or service. Never before has it said that every man, woman, and child alive has to purchase a particular product, on penalty of civil or criminal sanction or forfeiture. And never before have courts had to consider such a breathtaking assertion of raw power -- not even during the height of the New Deal, when the Supreme Court ratified Congress' regulation of what people grew in their backyards on the awkward theory that such behavior affected interstate commerce.
 
The individual health care mandate is an even greater expansion of congressional power under the Commerce Clause. And it cannot be justified under the Necessary and Proper or General Welfare Clauses either, because these provisions guide the exercise of Congress' enumerated powers without adding to them. In short, if the challenges to this health care "reform" fail, nobody will ever be able to claim plausibly that the Constitution limits federal power.


Hal Lewis, professor at UC Santa Barbara, said:

Asking non-lawyers about constitutional law is like asking Nancy Pelosi about science. Having said that, I think the challenges are real enough, but the Supreme Court has been willing over the years to bend the Constitution when appropriate, so that in today's coercive atmosphere anything is possible. The members of the Court are human too.

I don't know if it will happen on this issue, but somewhere down the road there lies a real conflict between the Obama Administration and  the Court. I am old enough to remember when President Roosevelt had a similar problem, and his solution was to try to pack the Court. He failed, but as Yogi Berra is alleged to have said, it is hard to predict the future. There are plenty of countries with tame Supreme Courts.


Joe Madison, host of The Black Eagle radio show, said:

The "Right" need to give up the ghost. This stunt is reminiscent of those who opposed the 1964 Civil Rights legislation. Their legal stunts failed and they will fail again. Once the American people realize this health care reform law will benefit them, they will be voting any State Attorneys who even consider taking away their medical benefits.


John F. McManus, president of The John Birch Society, said: 


The Attorneys General lawsuit is a justifiable legal challenge that might have a chance to cancel the monstrous healthcare intrusion if there were enough Americans who understood the Constitution and the proper role of government.  Sadly, the schools have done a masterful job of making the topic of American history so boring and so arcane for several generations of Americans that the numbers who understand true Americanism are few.
 
There is, however, a stirring throughout the land today that is looking into and attempting to understand the Constitution. Anyone who cares about liberty will do well to spur the awakening on, or at least join in the growing awareness.  The time for reversing our nation's plunge into totalitarian government is fleeting.
 


Ian Millhiser, Policy Analyst at the Center for American Progress, said:
Of course this is just a political stunt.  Even ultra-conservative Justice Scalia said, in Gonzales v. Raich, that the Constitution gives Congress sweeping authority to regulate "economic activity"--and it is laughable to claim that a bill to regulate the national health insurance market doesn't regulate economic activity.  The question Americans should be asking is why, at a time when many states are being forced to lay off teachers to make ends meet, over a dozen state attorneys general are about to waste millions of taxpayer dollars to litigate a frivolous lawsuit.



Justin Raimondo,
editorial director of Antiwar.com, said:
A great deal if not most of the legislation passed since the New Deal has been and remains unconstitutional -- e.g., where in the Constitution does it say the government has the "right" to impose the forced savings called "Social Security"? -- but that hasn't stopped anyone. The Constitution is an archaic parchment trotted out on special occasions for ritualistic purposes, and then put back under glass and steadfastly ignored. Where in the Constitution does the President have the power to send tens of thousands of troops overseas in an undeclared war -- and doesn't that document say only Congress has the power to make war? Again, the Constitution is politely but firmly ignored.

So the answer to the question is: yes, healthcare "reform" making the purchase of insurance mandatory is indeed unconstitutional. The problem is that nobody cares about the Constitution -- and if they started caring now, at this late date, they'd have to repeal most of the "social" legislation of the past seventy years.


Frank Askin, professor of law at Rutgers University, said:
I would call it a political stunt. They are confusing their policy preferences and constitutional law. While I would be the last one to provide assurances as to what the right-wing Supreme Court majority might do (I was certain the court would never stop the counting of Florida ballots and the appoint George W. Bush president in 2000), there is no support in constitutional law or history for the challenges to the healthcare legislation.


Bill Press, host of the "Bill Press Show" and a contributor to The Hill Pundits Blog, said:
Please, get serious. This is nothing but an attempt by publicity-hungry Republican attorneys general, all of whom are planning on or already running for higher office, to get their mugs on national television.


Alan Abramowitz, professor of political science at Emory University, said:
In my opinion it is clearly more of a political stunt. There is little or no chance that the courts will rule the healthcare reform law unconstitutional. I believe that all of these state AGs are Republicans and that several of them are either running for reelection or for governor. These lawsuits are a good way of building support among conservative primary voters and donors, although they carry some risk of alienating voters who stand to benefit from provisions such as allowing coverage of children up to age 26, prescription aid to seniors in the donut hole, and barring exclusion of children with preexisting medical conditions from coverage.  


John Feehery
, The Hill Pundits Blog contributor, said:
If it is a political stunt, it is a risky one. I am not a constitutional scholar, but it seems that there are some legitimate issues being raised here, especially the idea that the federal government can force you to buy a product from a private-sector company. What's next? A mandate to eat at least five servings of broccoli a week? But if this is seen as merely as a political exercise, I don't think the voters will react particularly well to it.


Peter Fenn, Democratic strategist, said:
Big-time political stunt  —  have any of these folks ever taken a constitutional law class?

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