Why Are We Taking The State Repeal Lawsuits Seriously?

Kentucky Attorney General Jack Conway announced yesterday that “he will not file a lawsuit against the federal government in trying to refuse the legislation.” “I do not intend to use my authority as Kentucky Attorney General to sign our Commonwealth onto a health care lawsuit against the federal government, because I will not waste taxpayer dollars on a political stunt,” Conway said. “Trey Grayson’s gimmick may be good ‘tea party’ politics, but it’s based on questionable legal principles,” Conway said, referring to the Secretary of State’s request that he file a lawsuit.

I think this is an important point. The 13 or so attorneys general who are suing the government to exempt their states from the health law’s individual requirement and Medicaid expansion provisions are doing so in their capacity as elected politicians, not lawyers and the sooner we all stop pretending that their lawsuits are grounded in a serious legal interpretation of the constitution, the better. At least 4 of the 13 AGs are running for higher office (either Governor or Senator) and the rest are up for re-election. Their suits are designed to rally political support, not lay down new legal doctrine.

I’m no lawyer, but the fact that the Florida suit doesn’t contain any references to past Supreme Court decisions or legal precedent suggests that it’s frivolous. The 22-page lawsuit reads like a Republican manifesto and doesn’t site examples of when the courts have agreed with the AG’s legal interpretations:

– The Act represents an unprecedented encroachment on the liberty of individuals living in the Plaintiffs’ respective states,

– The Act contains several unfunded mandates that will cost state governments significantly.

– Further, the Act converts what had been a voluntary federal-state partnership into a compulsory top-down federal program in which the discretion of the Plaintiffs and their sister states is removed.

More importantly, as Sen. Ron Wyden (D-OR) points out, the health care law already allows states to “go out and do its own bill, including having no individual mandate” as long as “they can meet the coverage requirements of the bill.” “Why don’t you use the waiver provision to let you go set up your own plan?” the senator asked those who threaten health-care-related lawsuits. “Why would you just say you are going to sue everybody, when this bill gives you the authority and the legal counsel is on record as saying you can do it without an individual mandate?”


Greg Sargent points out:

One of the state attorneys general who has signed onto a nationally-watched lawsuit to overturn health reform is Republican Greg Abbott of Texas. The lawsuit alleges that the new law is unconstitutional because it imposes a mandate requiring citizens to buy insurance.

Turns out, however, that Abbott strongly supported a law in Texas last year that requires divorced parents to purchase insurance for their kids, even if they prefer to pay for their medical expenses out of pocket.

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