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Next Health Care Fight: States AG's to Challenge Law

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By Tanya Roth, Esq. on March 23, 2010 12:50 PM

As if the health care bill has not undergone enough challenges during the legislative process (as it should) it will face a new challenge if and when it is signed into law by President Obama.

The Attorneys General from 12 states, all of them Republican (with the exception of Oklahoman Drew Edmonson) and at least one seeking office in the fall, will challenge the health care bill as unconstitutional.

As reported by The Christian Science Monitor, according to the 12 angry AG's, Congress over-stepped its authority when it passed the bill including a mandate that every American, with some exceptions, purchase health insurance. The states represented in the challenge include: Virginia, Florida, South Carolina, Alabama, Nebraska, Texas, Oklahoma, Pennsylvania, Washington, Utah, North Dakota, and South Dakota. (Editor's Note: The Monitor now reports the state of Oklahoma will no longer participate in the suit.)

According to an article on the site Health Reform Watch, the challenges to the constitutionality of the universal mandate may be based on first, the theory that Congress is over-reaching its power under the Commerce Clause of the Constitution in requiring citizens to purchase a product and second, that the mandate violates the individual liberties of citizens as set out in the Bill of Rights.

Heath Reform Watch author, Professor Mark Hall of Wake Forest Law School, makes a specific argument opposing these theories. He writes that even if the opponents of the health care law were correct in the assumption that Congress acted outside its power to regulate commerce by mandating a purchase of a commodity, in any case, the mandate is enforced by a tax penalty. The power to tax is well within the constitutional powers belonging to Congress. 

Second, Professor Hall argues that the liberty to purchase (or not) is an economic right, not a one of the fundamental rights enumerated under the Bill of Rights (such as freedom of speech or the right to a speedy trial) and given the strongest protection by the courts. Professor Hall writes, "In short, there is no fundamental right to be uninsured." So even if, as The Monitor reports, the Attorney General of Florida, Bill McCollum, states, "we will file a lawsuit to protect the rights and interests of American citizens," he and the others joining that suit may not be successful in protecting a right that may or may not exist.    

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