Conservatives Look to Courts to Overturn Health Care Reform. Experts Say Think Again

March 22, 2010
Several months ago as the Senate was debating the health care reform legislation, ACS released an influential Issue Brief countering arguments that the legislation was on wobbly constitutional grounds. Now, with passage of the historic reform legislation by the House and the promised signature of President Obama (pictured with Vice President Biden, celebrating House passage of health care reform) opponents are renewing their efforts to challenge the legislation as unconstitutional. Indeed several state attorneys general are threatening lawsuits, and The Atlantic's Andrew Cohen blasts some opponents for dredging up a widely discredited doctrine used by opponents of the Civil Rights Movement in their attempts to scuttle health care reform.

Cohen writes:

The largely discredited doctrine posits that the effect of Supreme Court decisions or other "encroachment" by the federal government may validly be blocked by the "interposition" of a viable state right (say, under the 10th Amendment) between the feds and the subject of the constitutional pronouncement. It's the theoretical equivalent, in other words, of a state official standing in front of a schoolhouse door blocking a lawfully-registered student from entering. It garners a lot of heat, and even a little bit of historical light, but has no tangible support in modern American law.

In light of the renewed attacks, ACS is re-releasing the Issue Brief, "Mandatory Health Insurance: Is It Constitutional?" by Simon Lazarus, public policy counsel to the National Senior Citizens Law Center. The brief, which was cited in Senate floor debate and media, concludes that the mandate for individuals to purchase health care insurance is "lawful and clearly so - pursuant either to Congress' authority to ‘regulate commerce among the several states,' or its authority to ‘lay and collect taxes to provide for the General Welfare.'"

Lazarus continues:

Opponents' arguments to the contrary express philosophical objections to the concept of mandatory health insurance in principle, without regard to the practical issues the Supreme Court has always used to evaluate laws challenged as outside Congress' interstate commerce authority: the practical impact of the mandate on commerce or the public welfare or the welfare of affected individuals, or the rationality of Congress' judgments about its impact on statutory goals.


No doubt, in some quarters, opponents' libertarian views are deeply felt. But they have no basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case law interpreting these provisions. Opponents' real grievance is with the law in its current state. Their hope is that a majority of the Supreme Court will seize on a challenge to mandatory health insurance as an occasion to make major changes in current law. But their arguments appear unlikely to gain traction with the current Supreme Court, and, indeed, represent approaches and theories that have been repudiated by justice across the Court's ideological spectrum.

Returning to the disquieting employment of "interposition" to attack health care reform, Cohen adds:

When modern-day reactionaries cry "interposition" now, on the other hand, it is largely to protect from federal tinkering an unworkable, expensive status quo on health care. Sure, interpositionists today talk about sinister federal intrusion, and the expense of it all, and of saving themselves from the tyranny of government-issued health care bureaucrats. But the effect of their work would be to protect insurance companies and Big Pharma. It would be to keep millions of Americans without better access to health insurance.

Other constitutional law experts have rebuffed opponents' claims that the individual mandate to purchase health care insurance is unconstitutional. See their articles here, here, and here.

[image via The White House]