Tuesday, April 6, 2010

Pawlenty v. Swanson: Litigation Politics

On Monday MN Attorney General Swanson informed Governor Pawlenty that not only will she not join him and other states to stop the health care law but that she would actually file an amicus to support it constitutionality. Whatever the larger politics are between Swanson and Pawlenty, she made the correct legal decision.

The law suit challenging the constitutionality of the law is barking at the moon, to say the least. The legal argument to challenge the bill is premised upon a 10th Amendment federalism claim, contending that the federal government has exceeded either its Commerce Clause or taxing power in requiring individual coverage or in requiring states to provide new mandates. There are numerous problems with these claims.

We first start with a standing and ripeness issue. Does a state have the standing to sue the federal government on behalf of its citizens? Specifically, here there is the assertion that states have the authority to challenge the individual mandate for insurance on behalf of their citizens. It is not so clear that can do that. Generally states can sue the feds when they as states have been injured (Take a look at the recent Supreme Court Massachusetts v. EPA decision on this) but it is not so clear states can always sue on behalf of their citizens. Standing is the issue. Standing refers to the ability of individuals to sue in court. One requirement of standing is that one must suffer an injury. Here citizens lacking insurance but who are required to buy it are those potentially facing an injury, not the states. Thus it is possible that the courts would say that the citizens themselves would have to sue, not the states.

There is a second issue here about the individual mandate and it relates to ripeness. The federal courts generally do not take cases until ripe for review. Here, the individual mandate does not take place until 2014. Before then the law could be repealed, modified, or who knows what. The point is that no one is injured until 2014. Thus the courts could say either there is no present injury (therefore no standing) or that the case is not yet ripe for review.

Now in terms of the federal government violating the 10th Amendment (federalism requirement), this argument is also tough to make. During the Rehnquist Court both the Chief Justice and Justice O’Connor led the way in terms of arguing that the 10th Amendment placed limits on the ability of the federal government to use its Commerce Clause power to legislate. The couple of cases at the basis of these decisions were unusual and signaled an aberration from the dominant Post New Deal jurisprudence and Court rulings giving the federal government broad authority under the Commerce Clause and its Taxing power to legislate. There is little indication that the Roberts Court is interested in taking on the federalism issues. Instead, in several cases involving questions of whether federal power preempts states from acting, the Roberts Court seems to be favoring federal over state power. It just does not look like this Court is as receptive to federalism claims as was the Rehnquist Court.

Bottom line: State lawsuits are faced with standing and ripeness issues and it is unlikely that the current Court will be favorable to federalism claims. The lawsuits to challenge the new federal health care law look like certain legal losers. However, not all lawsuits are about winning in a court of judges. Some are aimed at the court of public opinion in an election year and as part of an effort to ingratiate oneself with potential presidential supporters.

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