AGs Say Constitutional Challenges To Reform Have ‘No Legal Merit,’ ‘Waste Of Scarce Taxpayer Dollars’

If Sen. Harry Reid’s (D-NV) home state of Nevada sued the federal government over the health care bill he helped write and pass, it would make a difficult re-election campaign even more challenging. But thankfully, Nevada’s Attorney General Catherine Cortez Masto has informed Governor Jim Gibbons that the current Florida-led effort to invalidate the health care law clashes sharply with Supreme Court precedent.

I’ve criticized the Florida lawsuit for failing to demonstrate that the Supreme Court actually agrees with their interpretation of the constitution, but Masto doesn’t pull any punches. This, in other words, is probably what an actual discussion of the state of law looks like:

One theory to consider is that Congress lacks authority under the Constitution’s Commerce and Spending Clauses. However, the authority give to Congress is extensive and appears strong enough to support the Act. Health care costs affect our nation’s economy, and the Act is Congress’ answer to alleviating those costs. The United States Supreme Court long ago determined that insurance is commerce and is therefore subject to federal regulation. United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533 (1944). Since the 1930s and the “long-rejected Louchner-era precedents,” MeadWestvaco Corp. ex rel. Mead Corp. v. Illinois Dept. of Revenue, 553 U.S. 16, 128 S.Ct. 1948, 1510 (2008) (Thomas, J. concuring), Congress’ broad authority has been acknowledge to, among other things, uphold mandatory contributions to the Social Security Act system, Helvering v. Davis, 301 U.S. 619 (1937), and legislate many other federal programs.

The letter also notes that the lawsuit “would not come without a cost” — as Florida has hired a pricey Washington DC firm to handle the case — and argues that “it would be disingenuous for our state to make the argument that Congress does not have the authority to regulate health care under the Act” after the state “used the legal tools that Congress gave us under the Sherman Antitrust Act and the McCarran-Ferguson Act” to challenge a proposed acquisition of Sierra Health Services by UnitedHealth Group.


Other attorneys general have also refused to join the frivolous Florida lawsuit. Kentucky Attorney General Jack Conway told the Hotline last week that he will not “waste taxpayer dollars on a political stunt” and Ohio Attorney General Richard Cordray has said that the suit has “no legal merit” and would needlessly tie up the resources of his office. Similarly, Arizona Attorney General Terry Goddard issued a statement arguing that the “lawsuits have little merit and that participating in them would be a waste of scarce taxpayer dollars.”