Anti-Health Care Reform Suits Face Steep Hurdles

Tea Party demonstrators on Capitol Hill on Sunday (Photo by David Weigel)

The moment that the House of Representatives passed the health care reform bill, 10 Republican state attorneys general were ready for it. Early Monday morning, Virginia Attorney General Ken Cuccinelli announced plans to sue on the grounds that the federal government was abusing its “power to regulate interstate commerce” by passing a personal mandate for health care. Florida Attorney General Bill McCollum agreed, calling the mandate an attempt “to fine or tax someone just for living.” On the surface, conservative opposition to universal health care had dusted itself off and charged right back into the fight.

[GOP1]But beneath the headlines, press releases, petitions and donation drives that followed the historic vote, lawyers and legislators are less confident that health care reform can be repealed — much less that it can be repealed quickly. In Idaho and Tennessee, two states where state opt-outs of the federal mandate have passed (in Idaho, the legislation has even been signed by the governor), the people who will decide whether to challenge the bill are treading more carefully than the rhetoric suggests.

“Everybody needs to take a deep breath,” said Bob Cooper, a spokesman for Idaho Attorney General Lawrence Wasden. “This bill is a few thousand pages long. We need some time to review it. We need time to see whether or not it impinges on rights, how so, and whether we can bring a case that has merit. There are serious sanctions for attorneys who file frivolous lawsuits.”

Mae Beavers, a Republican state senator in Tennessee, was also cautious about how to proceed with a health care challenge. Her Tennessee Health Freedom Act sailed through the upper house, becoming a model for pre-emptive opt-out bills in other states. And while she expects a companion bill to move through the lower house, the possibility of an immediate challenge to the reform bill seemed remote.

“Our legislation says that whenever the national health care would start, our citizens will have a choice,” said Beavers. “I assume it would take a while to put together.”

The problem with a challenge, say conservatives, is that the mandate for health care — an idea with origins on the right that has become anathema ever since its implementation in Massachusetts — will not take effect until 2014. Whether attorneys general can successfully challenge the mandate until then is unclear. Thomas Woods, a conservative scholar who is putting the finishing touches on a Regnery-published book about nullification, suggested that challenges to the mandate will be fruitless, working their way through a legal system that has no great record of repealing major legislation.

“If states file legal challenges,” asked Woods, “who do they file them with? The federal courts! I wouldn’t even go to the legal level. From my point of view nullification is a way to announce to the government that your state is ready to engage in civil disobedience. It boils down to this: We are confident that obeying the will of the people means not enforcing this mandate. So what are you going to do now?”

Michael Boldin, the president of the Tenth Amendment Center — founded in 2009 to organize for such fights on behalf of state sovereignty — told TWI that legal challenges of any kind were the “first step” to opposing health care reform. But he envisioned the resistance to the mandate taking a more low-key form: Simple, persistent disobedience.

“If I were to reduce this whole thing down to one word,” said Boldin, “I’d say: Marijuana. Look at medical marijuana in California. California passed a medical marijuana law and the federal government said it couldn’t do so, under the supremacy clause. But people continued to disobey laws and it cost more money to enforce them then to ignore them.”

As difficult as a repeal of health care reform would be, as realistic as the disobedience plan sounds, neither approach to the issue satisfies the high-level legal groups, pundits and politicians who have campaigned against reform. Prior to the health care vote, on the Friday episode of his Fox News show, Glenn Beck showed Sarah Palin a map of states with opt-out bills in the works — many of them dominated by Democrats, where the legislation has no chance of success.

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Beck and Palin were only slightly ahead of the curve — the final 72 hours of the debate saw surge in the number of Republican politicians promising constituents that health care reform could be stopped at the courts. At Saturday’s “Code Red” rally in front of the Capitol, Rep. Zach Wamp (R-Tenn.), a candidate for governor of Tennessee, promised activists he’d meet federal regulators “at the state line” if elected. On Sunday, Rep. Pete Hoekstra (R-Mich.), a candidate for governor of Michigan, raised the possibility of blocking reform “at the ballot box” or “in the courts.” On Monday, Florida U.S. Senate candidate Marco Rubio endorsed Attorney General McCollum’s potential lawsuit — on a mid-afternoon Fox News appearance, former Gov. Jeb Bush (R-Fla.) praised Rubio and chided his rival, Gov. Charlie Crist (R-Fla.), for not backing the suit.

Conservative legal groups have taken much the same tack. Last week, the Landmark Legal Foundation — nominally run by conservative author and radio host Mark Levin — prepared a draft legal brief challenging any health care bill that the House “deemed passed” without a vote. Because the House held a full vote on the bill, the foundation scrapped that brief and, according to vice president Eric Christiansen, moved on to assisting attorneys general with whatever they decided to do.

“We want to see this thing defeated,” said Christiansen. “However we can leverage our resources and make the biggest impact, that’s what we’ll do.”

For the first time in the health care debate, however, opponents of the reform package face a complicated, uncertain struggle at odds with the promises and podium-pounding that marked the year of opposition.

“I don’t know what people are telling their donors,” said Curt Levey, executive director of the conservative Committee for Justice, “but litigation is always lengthy especially where, as here, the final answer will likely come from the Supreme Court… Courts will typically move things along faster when a case is as important as this one, but it’s unlikely that we would get a final decision from the Supreme Court before the 2011-2012 term.”

Levey’s take was in line with that of Idaho’s Cooper, hard at work in one of the AG offices that’s viewed to have the best chance of challenging the mandate.

“We’re not trying,” said Cooper, “to win a race to the courthouse.”