This Washington

Law Profs Debate Merits of McKenna's Anti-Obama Lawsuit

By Camden Swita March 31, 2010

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.

[caption id="attachment_33588" align="aligncenter" width="420" caption="Stewart Jay and Kathryn Watts, UW law professors, discuss the merits of the multistate lawsuit challenging Obama's health care bill"][/caption]

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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