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Are The Attorneys General’s Constitutional Claims Bogus?

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Immediately after passage of health care reform, over a dozen state A.G.s sued to declare it unconstitutional, as violating states’ rights.  The Florida complaint is here, and Virginia’s here. Reminiscent of southern governors in the 1960s blocking their state universities’ gates, these legal officers in effect are saying “not on our sovereign soil.”  Since the constitutional issues have already been hashed through so thoroughly, what’s new to talk about?

First, the Florida complaint, which a dozen other states joined (AL, CO, ID, LA, MI, NE, PA,SC, SD, TX, UT, WA), focuses mainly on the financial burdens of expanding Medicaid.  This is challenged under the “commandeering” principle, as requiring states to devote sovereign resources to achieve federal aims.  But, as we know, states are free to withdraw from Medicaid, so the argument seems to fall entirely flat.  The complaint makes a bait-and-switch type of estoppel argument , that states got into Medicaid without any expectation of this expansion, and now it’s too damaging for them to withdraw.  So, in effect, states argue that the Constitution allows them to keep the federal carrot but refuse the federal stick.  Good luck selling that to an appellate court.

Second, these states complain about having to implement the insurance purchasing exchanges and their rules, but here again, states are entirely free to opt out and let their citizens use the federal exchange.  The only reason states have to implement exchanges is that they insisted the legislation give them this option, rather than forcing everyone into a single national exchange.  States can hardly complain about the responsibilities they asked for, especially when they’re still free to duck them.

Third, there are procedural problems.  States probably have no standing to enforce arguments about violation of individual rights (which is the main concern regarding the individual mandate).  Also, consider the remedy if states were to prevail:  It would wreak havoc to overturn the mandate to purchase, but not the mandate for insurers to sell without any medical underwriting.  Doing that would cause massive adverse selection and probably destroy some companies and some portions of the market, so a court would have little option but to strike down most or all of the entire law.  Surely that measure is extreme enough to give even the most activist judge pause, and so will compel most courts to find every possible way to uphold constitutionality, regardless of political persuasion.

Finally, do state nullification statutes like Virginia’s make a difference?  Not according to Harvard’s Charles Fried (who was Reagan’s Solicitor General):

The notion that a state can just choose to opt out is just preposterous…. As long as the federal law is independently constitutional, it doesn’t matter what Virginia says… It’s like Virginia saying we don’t have to pay income tax….One is left speechless by the absurdity of it.”

This leaves only the well-worn arguments about exceeding powers to regulate commerce and to tax for the general welfare.  On these, most legal scholars are loud and clear about the merits.  In sum, as Sandy Levinson’s (Univ. Texas) says, “The argument about constitutionality is, if not frivolous, close to it.”

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  • Chuck Gates '09L says:

    Mr. Hall,

    Please forgive my error in presuming the author of this post was Tim Jost. I incorrectly presumed it was by him merely because of my regrettably ethnocentric blinders of having attended the law school in which he teaches.

    Any guidance on my thoughts from yourself, Prof. Jost, or any of the authors here would be greatly insightful and educational to me.

    Thank you

  • Chuck Gates says:

    Professors Hall and Jost –

    I thoroughly enjoyed this post as well as Prof. Jost’s commentary on CNN earlier this week because they both addressed the actual legal viability of the cases, rather than the political oohs and aahs that the media has been salivating over.

    I agree with your line of thought regarding the first and second points, as well as Fried’s analysis on the 4th issue. My Virginian state legislators were simply wasting time with the silly law to reject the federal mandate. Perhaps they were attempting a 21st Century “sic semper tyranis” declaration (albeit a comically political pander).

    In regards to the third issue, I agree that the states lack standing. However, I have a question on the authority to regulate in the absence of action. Agreed, “[t]he Constitution gives Congress the power to regulate commerce among the states.” But does it give Congress the power to regulate the lack of commerce among individuals? Sure, “[t]he Supreme Court has long held that this authority reaches all economic activity.” But has the Supreme Court held that the authority reaches all economic inactivity?

    Every commentary I have read this week regarding the state lawsuits outline a Commerce Clause argument in favor of regulatory authority based on the line of precedent from Wickard v. Filborn to Gonzalez v. Raich. But couldn’t a good attorney argue that the entire line of precedent is inapplicable to this case because it always (or at least, I believe all, but I readily admit I am far less knowledgeable on this topic) involves Congress regulating ACTIONS that impact interstate commerce? In this case, there is no action to regulate, only an uninsured person’s choice not to engage in interstate commerce.

    Imagine a plaintiff citizen (who would have the standing an overzealous AG lacks) who refused to pay the tax/fees after refusing to purchase insurance. Couldn’t he simply argue that the Commerce Clause shouldn’t give Congress the authority to regulate an individual’s right to choose NOT to purchase a product?

    What’s more, a thorough attorney could easily lay out a slippery slope where a ruling in favor of authorizing Congress to force individuals to expend their personal savings and engage in commerce would set a precedent where Congress could force citizens into all sorts of actions contrary to their individual choice. Surely that result is also “extreme enough to give even the most activist judge pause.”

    Of course, I understand that there are a few, very limited instances where the Constitution authorizes Congress to force individuals into action. The obvious example is the collection of taxes. However, that only strengthens the argument I am attempting to outline (which is admittedly based on my very rudimentary and inexperience knowledge of the law). Were the defendant government to offer up Congress’s authority to tax as an example of Constitutional power to regulate a refusal to act, I would reply that is exactly why the drafters chose to explicitly specify that authority in detail and follow it with a clear limit on Congress’s ability to stretch authority to other areas not outlined therein.

    Whew… Thanks for indulging me. I am clearly missing something in this line of thought, otherwise I imagine others would have discussed the legal premise. Which is why I am glad you have this blog so that I can guilt you into continuing teaching me even though my tuition dollars only applied through last May when I graduated from the law school where Prof. Jost teaches. Thank you in advance for the guidance.

  • captbecker says:


    Your arguments are scholarly, but backward looking. I predict that we are going to see some very interesting “zigs where there used to be zags” in the future. Anyone can predict the past, it takes vision and genius to predict the future.

    To your comment: “Reminiscent of southern governors in the 1960s blocking their state universities’ gates, these legal officers in effect are saying “not on our sovereign soil.”

    That is an ad hominem attack, plain and simple. Everything you say after that is, at the least, suspect. Gratuitous aside: folks who have to resort to ad hominem attacks generally have weak positions to begin with.

    More to the point, those governors were all, every single dang one of them, 100% Democrats. You don’t really want to open this discussion, and I recommend that you amend any future writing to avoid aspersions. I am sick and tired of bigoted minds dominating an important policy discussion.

    Further, I suspect that the Tenth Amendment will play a central role here somewhere. Going slightly sideways for a moment —> I don’t really care what prior case law says, that is an artifact of our bizarre and defective system of common law, which does nothing for justice except to enrich attorneys. Why does the rest of the civilized world operate under civil law, with equal justice and far less legal expense overhead? Returning to Planet Earth —> The question that I suspect some judge somewhere is going to be puzzled by is, if the Tenth Amendment doesn’t forbid the federal government from reaching inside the states on topics like these, then why did they put it in there? Are we to believe that the law they wrote really meant or means nothing? I didn’t know that courts, even our screwed up courts, could decide to disregard clauses or provisions more or less arbitrarily. I don’t think that will stand through this issue.

    Free unqualified legal opinion: The greatest mistake the Founders made in writing the Tenth Amendment was to let the federal Supreme Court decide cases based on Tenth Amendment principles. That is leaving the fox in charge of the henhouse. It is clearly in the selfish interest of the federal Supreme Court to extend federal power at the expense of state power. In the spirit of federalism, there should be a state-dominated court for Tenth Amendment issues. But let’s get back to the topic at hand.

    You then say: “It would wreak havoc to overturn the mandate to purchase, but not the mandate for insurers to sell without any medical underwriting. Doing that would cause massive adverse selection and probably destroy some companies and some portions of the market,”

    That is exactly what will happen, due to the irreparable structural defects of the law. People who don’t buy insurance will pay a fine that is a fraction of what insurance would cost. When sick or hurt, whi le in the ambulance on their way to the hospital, they will buy insurance as needed. Legislative defects like this are characteristics of outsized and rushed plans intended to score a legislative victory rather than achieve a desirable result.

    Perhaps worse, while these freeloaders were seen as a way to make the numbers work, the “young and healthy, the invincibles” will now become avid healthcare services consumers. Once they have insurance, they will do what everyone who receives an entitlement does: they will use it to the max. Our waiting rooms and ERs are going to be crowded to overflowing with newly insured (with subsidies) healthy young people wanting to get their money’s worth. Which of course loops us back around to, who’s going to pay for it? I don’t know, I’m not sure how our grandchildren are going to feel about paying for what we receive today. Nice legacy….

    For clear and unbiased analysis, based on the respect for the Constitution and a commitment to pragmatism:


  • charles legoll becker says:

    Recalling the civil rights sins of a group of Democratic governors (“Reminiscent of southern governors in the 1960s blocking their state universities’ gates, these legal officers in effect are saying “not on our sovereign soil.”) is simply and plainly an ad hominem attack. Different people, different issue, has no place in this discussion.

    This is already written into the law (“It would wreak havoc to overturn the mandate to purchase, but not the mandate for insurers to sell without any medical underwriting.) It’s obvious and well discussed, the fine for not buying insurance is less than the cost of buying insurance. With the pre-existing condition provision, people will wait until they are sick or hurt to buy insurance.

    Worse yet will be when healthy young people, newly insured with government subsidies, show up for their share of health care. This will inundate the system and drive costs sky high.

    Bad bill, bad approach, needs to be withdrawn or defunded and start again.

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