Just after 11:00 a.m. today, President Obama will sign health care reform into law. Very soon after that, the constitutional challenges will begin. And two Baker Hostetler partners want to lead the charge. The National Law Journal reports:
David Rivkin Jr. and Lee Casey argued for months that the health care overhaul under consideration in Congress was unconstitutional. Now, the two Baker Hostetler partners will have a chance to make the case in court.
Rivkin and Casey, who work in the firm’s Washington office, have signed on as outside counsel to several state attorneys general who want the legislation overturned in court. The litigation is the initial wave of what is expected to be a long series of lawsuits challenging various pieces of the overhaul, which won final congressional approval Sunday.
Does Baker Hostetler really want its name all over this? On the one hand, Bush v. Gore made Ted Olson and David Boies big stars. On the other hand, do you really see SCOTUS overturning major health care reform on constitutional grounds? I don’t. I just don’t see how the Court takes this opportunity to stop the relentless expansion of the interstate commerce clause by overturning the most contentious public policy issue of our generation.
Which kind of leaves Baker Hostetler holding the bag for what may be interpreted as purely partisan lawyering…
The lawsuit is already being looked at through a hyper-partisan lens:
Rivkin said Florida will be the lead plaintiff, with Baker Hostetler serving as outside counsel to the state’s attorney general, Bill McCollum, and to any other state attorneys general that sign on to the lawsuit. About 12, including those from South Carolina and Utah, are expected to do so…
Virginia Attorney General Ken Cuccinelli, also a Republican, is expected to file a separate federal lawsuit today in the Eastern District of Virginia.
And the fact that Rivkin and Casey have served in two Republican administrations doesn’t make things look any more objective:
Casey and Rivkin served in various capacities in the Reagan and George H.W. Bush administrations, and they’ve been frequent commentators on the constitutionality of Democrats’ health-care proposals. Rivkin said it’s “enormously gratifying and intellectually rewarding” to work on the case, even though he wishes the legislation were not becoming law. Baker Hostetler is taking on the case at a “substantially reduced” rate, he said.
We shouldn’t be surprised when the courts become a venue for politics by other means. We are used to it: the two parties have very different conceptions of constitutional rights, for instance. Civil rights, gay rights, gun rights, those kinds of issues end up in court all of the time.
But taking the most intense public policy debate in this country in decades and throwing it to the courts is a little bit different. The democratic process on this issue has been long, it’s been viscous, but our elected officials have come to a decision. Maybe it’s the wrong decision. We’ll have an opportunity to vote on that soon enough.
Do people in good faith really think that health care reform is illegal? Or are we in a situation where the political losers are simply trying to subvert the ballot box?
These lawsuits are not surprising. They are a bit disappointing.
Baker Hostetler Partners Take Up States’ Challenge of Health Care Overhaul [National Law Journal]