In a recent piece for Slate, Simon Lazarus of the National Senior Citizens Law Center and George Washington University Law Professor Alan Morrison provide a sharp critique of the anti-health care reform lawsuits filed by several attorneys general. According to Morrison and Lazarus, the author of an ACS Issue Brief on the constitutionality of health insurance mandates, "The state attorneys general efforts to block health care reform aren't just wrong. They're frivolous."
Lazarus and Morrison write:
The first problem is that state governments are the wrong plaintiffs to challenge the individual insurance mandate. No state will ever have to pay a penny in taxes or be told to take out health insurance: The law applies only to individuals. The attorneys general might have attempted to plug this gap by adding individual plaintiffs to their complaints. But even if they found those people, the AGs couldn't sue on their behalf right now, because the mandate does not take effect until 2014. Between now and then, all kinds of things could cause plaintiffs to lose their standing to sue: Their health could deteriorate and they could actually need health insurance; they might get a job with health benefits; or they might just have a change of heart. Any or all of these contingencies are quite likely, if a Massachusetts state government survey showing that only 2.6 percent of Massachusetts residents do not comply with the mandatory insurance requirement in that state's law is any indication. In lawyers' language, not only will the state attorneys general never have standing to bring these claims on their own; even the claims of real individuals are not yet "ripe."