Ever since the passage of the healthcare reform bill, conservatives have been calling for a legal challenge of the bill in federal courts. Indeed, 14 state attorneys general have announced a lawsuit against the federal government over the legislation, which they claim is an unconstitutional breach of state sovereignty and an over-expansion of federal power.
Critics of this decision, including Secretary of Health and Human Services Kathleen Sebelius, accuse the GOP of political posturing, hoping to continue their obstructionist stance against the Obama agenda, or using the lawsuit to further their careers. AG Bill McCollum certainly stands to gain – the bill is unpopular here in Florida, and his position in the polls for the Gubernatorial race is moving in a promising direction.
But underlying the typical partisan bickering is a very interesting legal question: Do the states have a case? Is the healthcare legislation unconstitutional, and how will the courts rule?
This isn't an easy question to answer, and it's much deeper than the superficial political questions of the government's role in healthcare. There are far-reaching implications of a decision on one key issue: the individual mandate. The President often refers to his reform effort as unprecedented, and for once, conservatives agree; literally, there is no legal precedent for this type of mandate.
This article appears in Mar 31 – Apr 6, 2010.