A panel of law professors from the University of Washington and Seattle University met at the UW yesterday to weigh the chances of the lawsuit filed against the federal government over President Obama’s health-care reform bill.
Fourteen state attorneys general, including Washington State AG Rob McKenna, have joined the suit, which was originally filed in Florida. They claim that Congress is violating the Commerce Clause and the Tenth Amendment by requiring all citizens to purchase health insurance.
So as you may have heard, Wisconsin US Rep. Paul "Rhymes with Lyin'" Ryan spoke at the GOP convention last night. By virtually all accounts, many of the claims he made in his speech were misleading at best, mendacious at worst. Here's a roundup of what the pundits had to say this morning: 1. The New York Times has a good basic write-up of the speech (which, I admit, had a funny line about college grads staring at faded Obama posters while living in their childhood bedrooms)... 2. ... and then fact-checked Ryan's speech, which the paper said "made several statements that were incorrect, incomplete or incompatible with his own record in Congress." 3. Wolf Blitzer, at CNN, says he counted seven or eight "points I’m sure the fact checkers will have some opportunities to dispute." 4. At the Washington Post, Katrina vanden Heuvel says Ryan's proposed budget cuts, three-fifths of which would come from programs to help low-income people, are "not courageous, but cruel." 5. The New Yorker's Ryan Lizza catalogues five "hypocrisies" in Ryan's speech, including his claim that Obama was responsible for a plant closure that happened before he took office; the fact that Ryan trashed Obama's stimulus despite actively lobbying for more stimulus dollars for his state; and the fact that Ryan himself was a major reason the Simpson-Bowles debt commission---which Ryan said "did exactly nothing"---failed. 6. Also in the New Yorker, John Cassidy says "you had to admire his gall, or his recklessness," for claiming his Medicare-privatization scheme, which would give seniors a coupon to pay for health care, would save the social-safety net. 7. More Ryan prevarications from The New Republic, which speculates that Ryan's speech may be the "most dishonest" convention speech ever: Ryan attacked Obama for "raiding" Medicare at the expense of seniors. But Ryan supported the same cuts Obama did---he just wanted them to pay for tax cuts for the wealthy, rather than lower payments to health-care providers (not seniors, as Ryan claimed). And he blamed Obama for deficits that resulted primarily from the Bush-era tax cuts and wars. 8. And another lie, from Think Progress: Ryan claimed that under Obama, the US has accumulated "More debt than any other president before him, and more than all the troubled governments of Europe combined." In reality, the debt has increased from just over $10 trillion when Obama took office to just over $15 trillion today. 9. Slate, which offered a similar take to TNR's, polled US voters and found that 24 percent were much less likely to vote for Romney after Ryan's speech; just 13 percent were much more likely to vote for Romney. 10. Talking Points Memo points out more examples of Ryan "blaming Obama for things Paul Ryan did," including House Republicans' refusal to act on the debt ceiling, which credit-rating agencies said was the reason they downgraded the nation's credit. 11. The Post's E.J. Dionne on Ryan's, and the Republican Party's, new emphasis on the idea that people must suffer to prosper. 12. Esquire, taking on Ryan's warning that shadowy "central planners" will take over our lives, asks sarcastically, "The central planners? Really? Are there tanks in Budapest again? Are Quemoy and Matsu in peril? Can the Giants catch the Dodgers?" 13. Speaking of central planners, Firedoglake points out that the central-ist of central planners, the Army Corps of Engineers, was busy saving New Orleans while Ryan was inveighing against government investments in central planning. 14, Maddowblog puts it bluntly: "Paul Ryan made painfully clear that he thinks we're all profound idiots who'll believe an endless string of lies, so long as they're packaged well and presented with conviction." 15. Ezra Klein---again, at the Post---explains why the paper ran a piece called "The True, the False, and the Misleading," noting that although he, in the interest of fairness, wanted to reject the notion that Ryan lied in his speech, "Ryan's claims"---including the claim that Obamacare, which expands access to private health insurance, would socialize health care under the federal government---"weren't even arguably true." 16. And finally, even Fox News is calling Ryan's speech "apparent attempt to set the world record for the greatest number of blatant lies and misrepresentations slipped into a single political speech."
All four professors on the panel agreed that the multistate lawsuit is a bit of crapshoot, and one participant, SU law professor John McKay, suggested that McKenna’s decision to join the suit was politically motivated and ethically questionable. McKenna, a Republican, is widely viewed as a potential candidate for governor in 2012.
Among the several potential hurdles the AGs’ lawsuit could face, two in particular stand out.
First, said UW law professor Stewart Jay, it doesn’t appear that Congress is exceeding their constitutional authority in passing health care reform.
“The power [to pass the health-care bill] comes from at least two different and separate [constitutional] bases,” he said. “One is the power to tax and spend … on general welfare, any national interest. The second is the Commerce Clause. The Supreme Court has given Congress the broad authority to regulate commerce, and health care is a form of interstate commerce.”
Jay said there’s no constitutional difference between the health care legislation and Social Security, Medicaid or Medicare. As with those programs, the government will require all citizens to pay into a program that then provides a service to citizens. You can view the requirement to buy insurance as a kind of tax that will benefit society at large by reducing uncovered health care costs.
However, UW law professor Kathryn Watts said there is a practical difference between health care and those programs.
“Congress is trying to tell individuals you must go out and buy a good or service on the private market, so it’s different from Social Security,” Watts said. “Purely through that lens, this is novel.”
That makes the situation a little hairier, Jay admitted, but it’s still not grounds to sue the federal government. Imagine the same situation, except with cars, he said. Although Congress couldn’t require everyone to buy a Prius, he said, they could very well enact laws that made every car one might reasonably purchase in the U.S. very Prius-like.
Another reason this lawsuit might stumble is rooted in judges’ perceived role of courts, said Jay. When looking at the merits of a case, a judge has to ask, “Is the right person bringing this lawsuit, and at the right time?”
The panel agreed that an AG is really the right person to bring the lawsuit. But, they said, it’s unclear who the AGs’ clients are. Ideally, citizens believing they have been harmed by Obama’s bill would bring suit. Even a governor or legislature would be better, they said. In addition, the majority of the changes mandated by the bill won’t take effect until 2014. The AGs might be jumping the gun.
Political and legal concerns aside, the panel seemed eager to watch the lawsuit pan out. McKay even went as far as to call it an “erotic dream” for law professors.
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