Posted by MataHarley on 26 December, 2009 at 11:51 am. 11 comments already!


The dancing in the Congressional halls may prove seriously premature as Fox News and the LA Times both report on various challenges in the courts begin taking shape even before the Senate’s final vote early Christmas Eve morning.

Organizations and lawmakers opposed to the health care reform package are getting their legal briefs in a bunch, threatening to challenge the constitutionality of the sweeping overhaul should it make its way to President Obama’s desk.


Two key issues seem to be attracting the bulk of the legal threats: a mandate for individuals to purchase health insurance and the special treatment that states like Nebraska are getting in the bill.

On the first issue, Sen. John Ensign, R-Nev., on Tuesday renewed the call to examine the constitutionality of whether the federal government can require Americans to purchase a product.

“I don’t believe Congress has the legal or moral authority to force this mandate on its citizens,” Ensign said in a statement, raising what’s known as a “constitutional point of order.” Such procedural challenges are rare and typically lead to a vote.

The non-profit Fund for Personal Liberty, as well as a Virginia-based group called the 10th Amendment Foundation, already have threatened to file suit in federal court over this issue if the health care bill passes.

The Constitution allows Congress to tax, borrow, spend, declare war, raise an army and regulate commerce, among other things. Proponents of the insurance mandate point to the Commerce Clause in arguing that Congress is within its rights to require health insurance and dismiss such potential legal challenges.

But foes say the across-the-board requirement is too broad.

“I personally do not believe the Congress has the authority to enact an individual mandate requiring a person to purchase a product from a private seller,” said Kent Masterson Brown, lead counsel with The Fund for Personal Liberty. “I don’t think the power is there. This is not regulating anything.”

He said his group would be joined by the Washington Legal Foundation in filing suit against the health care bill.

“This thing may be stillborn, even if it passes,” he said.

I’ve mentioned before that a federal mandate on health insurance raises serious legal infringement on 10th Amendment rights. States maintain the rights to tag on their own mandates of medicine and insurance. Indeed, it is these separate mandates that makes one state’s insurance so expensive compared to another… lots of extras the state say *must* be included coverage.

This 10th Amendment crossover is also what makes portability more complex, but certainly not impossible. Base coverage could be provided by all insurance providers, and special riders applicable to each state could be added.

But the question is, what forms the basis to a federal mandate of coverage? Do they take the states’ with the most widespread coverage and make that the minimum, effectively raising the rates of the states with cheaper insurance? And what happens to the federal “minimum” when a state utilitizes it’s 10th Amendment right and tags on a few more ditties of coverage? Are those plans now automatically thrown into the “cadillac” taxable plans?

The 10th Amendment Foundation states any federal plan and mandate is unConstitutional. This newly founded non-profit suggests the alternative of allowing states to come together to form a “Uniform Health Insurance Regulation Act”, similiar to The Universal Commercial Code that governs interstate commerce. Caps on punitive damages, aka tort reform, is also a suggestion to lower medical costs.

The Fund for Personal Liberty, a libertarian non-profit organization, finds the concept of mandating the purchase of health insurance well beyonds the bounds of Constitutional powers. Instead the proponents continually make the erroneous comparison to auto insurance – insurance that is not mandated if you choose not to drive, is a state mandate… not federal, and is in place to provide liability coverage for others… not the individual.

This is certainly not the first foray into the health care overreach by The Fund for Personal Liberty. They are also active in helping fund and advance the Hall v Sebelius lawsuit I posted on August 3rd. To jog your memory, this is a lawsuit of several wealthy seniors who want to opt out of Medicare coverage for private insurance, but found that a Clintonian rule change prohibited that unless they were also willing to forfeit their Social Security payments.

Joining The Fund for Personal Liberty in their challenge against unConstitutional federal health mandates is The Washington Legal Foundation (also occasionally referred to in articles as the Washington Legal Fund. The WLF – sort of the anti-ACLU in their interpretation of law – is active in a wide spectrum of litigation areas over the years, including filing amicus briefs along with the US Chamber of Commerce against. PA Dem governor, Ed Rendell, and the plethora of Gitmo detainee cases (i.e. Hamdi, Hamden, Boumediene, etal). (See some litigation cases and docs here)

The WLF is another entity not new to the health care battles. Since 2007, they have been been battling the Centers for Medicare and Medicaid Services for denying Medicare/Medicaid coverage for numerous cancer uses of ESAs – despite their FDA approval status.

But the battles are not confined to the legality of mandates and states rights. Indeed the very behavior of the various lawmakers on the take, and the others already lining up for special favors are raising the ire in many States, incensed at what results in the states *not* on the take carrying what is an unfair burden.

Other legal objections are emerging in the wake of a concession that Sen. Ben Nelson, D-Neb., won for his state as a condition for his support of the health care bill. Senate Majority Leader Harry Reid agreed to provide for full and permanent federal aid for Nebraska’s expanded Medicaid population. It was only one of a slew of hand crafted sweetheart deals for those senators who agreed to support the bill.

But the Nelson deal swiftly drew the ire of Sen. Lindsey Graham, R-S.C., who has asked his state’s attorney general to give the issue a legal review. He told Fox News on Tuesday that other states can probably bring a “constitutional challenge” over the issue. He said it’s unfair for one state to get special treatment while others pick up the tab.

The non-profit Liberty Legal Institute is poised to assist states that are considering filing suit against the government over the health care bill. The group would not disclose where the suits might come from, but claimed great interest in putting health care reform to the legal test.

“There are a lot of states that are concerned that this violated the 10th Amendment and they are weighing their options,” Kelly Shackelford, chief counsel, said in a statement. The 10th Amendment declares that powers not delegated to the United States by the Constitution are “reserved” for the states or “the people.”

The Liberty Legal Institute is already on the media radar as those representing Hannah Giles in her defense against ACORN lawsuits. Columnist Giles and her filmmaker cohort, James O’Keefe, catapulted to fame with their undercovers ACORN expose’ series. (See some FA posts here by Curt, Mike’s A, and myself.)

Obviously no challenges can be mounted until there is a law…. rather an ugly truth we need to accept. Depending on whether the chambers go thru the traditional reconciliation of two different bills, or whether they opt for a conference where Pelosi persuades her own to simply embrace the Senate bill as written, it’s going to be Herculean to be on the POTUS desk before the State of the Union. This gives time for more solid brief foundations, and more players to join the rush against blatant Constitutional corruption by this Congress and POTUS.

I take heart at the New year. For that “stillborn upon passage” comment by the Fund for Personal Liberty spokesman, Kent Masterston Brown, floats on the air like spring’s bird song.

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