Health Care / Medicine

Will the Courts Stop Health Care Reform?

The big news today seems to be the Health Care bill. Congratulations and recriminations are all over Washington today as supporters claim they are happy with the bill (they’re not) and detractors claim it will ruin America (it won’t).

Now that it looks like something will actually get signed, it’s time for the losers to run to the courts. This happens all the time, if you lose at the ballot box you try to win at the bar. Liberals and conservatives do it. The question is whether the courts will take the bait.

Don’t hold your breath waiting for the court system to overturn health care.

The Wall Street Journal Law Blog reports on the first likely legal challenge to health care reform in Virginia:

Folks in Virginia, according to the story, appear eager to challenge the bill on two other grounds as well — that Congress’s power to regulate interstate commerce does not extend to a bill this far-reaching, and that the bill conflicts with a state law saying that no Virginian shall be compelled to buy insurance.

“This is such an incredible federal overreach,” said Virginia’s attorney general, Ken Cuccinelli. Cuccinelli added, however, that there was “no rush” to enjoin the bill from taking effect, as the so-called “individual mandate” does not take effect until 2013.

Of course, the White House and Democrats will marshal their legal forces as well, and will “coordinate a state-by-state response to any prospective challenges.”

Call me naive, but I just don’t see the Supreme Court wading into this mess. Not now, not after Bush v. Gore. The Volokh Conspiracy notes that people will be much less likely to accept Supreme intervention in a post Bush v. Gore universe:

With respect to the likelihood of gaining five votes for a constitutional challenge to the bill, I reminded readers of Bush v. Gore, which has already evoked one irate email from a reader.

Re: “Is health-care reform constitutional?” Washington Post 3/21. Your suggestion that “five justices may have perceived that long-established rules were being gamed for purely partisan advantage”, i.e., that there was some hint of nobleness about the process, is unacceptable. Have you read the opinion?? None of the Injustices even made such a claim. As confirmed later by an article in Vanity Fair, they simply wanted Bush to be President, and installed him in the greatest threat to our Constitution ever. I challenge you to go over Bush v. Gore with me, point by point.

I predict there will be more. Bush v. Gore remains a sore point for many Americans. But not as many, I suspect, as will remain upset about the passage of health care legislation after statements such as these.

I wouldn’t hold my breath waiting for a constitutional override of this bill. But you never know. Obama might want to stop bitching at the Court over Citizen’s United, just in case Article III decides to flex its muscles. \

Health Care: Cue Up the Legal Fights [WSJ Law Blog]
Is Health-Care Reform Constitutional? [The Volokh Conspiracy]
‘Smart Money’ Says Supreme Court Won’t Thwart Health Care Bill, Law Prof Says [ABA Journal]

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