U.S. defends health reform against lawsuits in Michigan, Virginia

The Obama administration has previewed its initial line of defense in what has become a stream of lawsuits challenging the constitutionality of the individual mandate in the federal health system reform law. And with both sides firmly digging in their heels, experts predict a prolonged legal fight that could go as far as the U.S. Supreme Court.

The administration said the mandate requiring most Americans to obtain health insurance coverage or face a tax penalty is not only an integral part of the reform law, but also falls well within Congress' powers to regulate areas impacting interstate commerce -- in this case, health care.

That's according to a May 11 brief the government filed in response to a lawsuit the conservative Thomas More Law Center and four uninsured individuals initiated in a Michigan federal court the day the landmark legislation was signed. The lawsuit contends that individuals who choose not to buy health insurance are not engaging in any economic activity subject to federal regulation.

Such claims are "flatly wrong," White House lawyers said. Decisions not to purchase health insurance affect interstate commerce by shifting costs to third parties. "Congress determined that the health care system in the U.S. is in crisis, spawning public expense and private tragedy," and thus it approved comprehensive health reform to deal with the problem, the brief states.

The Dept. of Health and Human Services reiterates that stance in a motion it filed May 24 asking a Virginia federal court to dismiss a similar challenge launched by state Attorney General Ken Cuccinelli immediately following the law's enactment. The lawsuit further alleges that the federal mandate conflicts with a Virginia statute prohibiting health insurance mandates.

But that state law did not give Virginia the right to sue, the government said, adding that federal law supersedes state law. Moreover, it is individuals, not states, who are affected by the requirement, the motion states. Also, the mandate does not take effect until 2014, rendering such lawsuits premature, federal officials argued in both cases.

Plaintiffs in the Michigan case, however, say they already are being forced to make decisions to prepare for the law and avoid penalties.

"Three years is a short time away, and people have to consider whether to change jobs to get insurance, or save money to set aside for health care," said Robert Muise, senior counsel at the Thomas More Law Center in Ann Arbor, Mich. "Never in our history has the government sought to acquire for itself the authority to force someone to engage in a commercial transaction they wouldn't otherwise engage in. The government has very broad authority, but it's not without limits."

Cuccinelli acknowledged that federal law usually trumps state law. But if a federal law is found unconstitutional, valid state laws would prevail. "If Congress has the power to force Americans to buy health insurance, then there's nothing to stop Congress from forcing us to buy any product," he said in a statement.

Battle lines drawn

The battle is a preview of what is likely to come in another lawsuit led by Florida Attorney General Bill McCollum and joined by 19 other states. The case is expected to get under way at a hearing scheduled for Sept. 14 in a Florida federal court. At this article's deadline, hearing dates in the Michigan and Virginia suits had not been announced.

Some constitutional scholars say the federal government is on solid footing.

"There's no question that this affects interstate commerce. The health care industry is 16% of the economy, and the individual mandate is directly tied into how that 16% will operate, whether it will go up or down," said Herman Schwartz, a law professor at American University's Washington College of Law in Washington, D.C.

Congress also has broad constitutional authority to pass laws necessary to effectuate its regulatory powers, said Robert Schapiro, a law professor at Emory University in Atlanta. "So even if the mandate isn't itself a regulation of commerce, the question is: Is it necessary to the implementation of a regulation?"

Still, the reform law appears to break new ground and represents an expansion of existing congressional powers that the courts will nonetheless have to address, said Randy E. Barnett of Georgetown University Law Center in Washington, D.C.

"The health insurance mandate is vulnerable because nothing like this has ever been done before under the commerce clause," he said. "The Supreme Court is always free to extend its reading of congressional power, but the lower courts should not be doing that. And if any of them strike down the mandate, it will definitely go to the Supreme Court."

For that reason, the issue is expected to come up during the questioning of Obama's choice to replace retiring Supreme Court Justice John Paul Stevens. Confirmation hearings for the nomination of Solicitor General Elena Kagan to the high court are scheduled to begin June 28.

"Given the political controversy ... I would expect Republican senators would ask about the health care bill, or more generally, [Kagan's] views of the powers of the government under the commerce clause," Schapiro said.

Sen. John Barrasso, MD (R, Wyo.), announced in May he would press Kagan specifically on the insurance mandate's constitutionality.

Having served since March 2009 as solicitor general -- the government's representative before the Supreme Court -- Kagan's impartiality on the health reform law also is expected to come under fire.

The Senate Judiciary Committee "must take the time to ensure that the nominee will be true to the Constitution and apply the law, not personal politics, feelings or preferences," said Sen. Chuck Grassley (R, Iowa), a member of the panel.

Schapiro said it is unlikely Kagan would have had any direct participation in reviewing the health reform law and, therefore, it is unlikely she would have to recuse herself should the issue later reach her on the high court.