Even if Wisconsin Attorney General J.B. Van Hollen gains authorization to join 13 other states in filing a lawsuit against the federal health care reform plan, the suit stands little chance of holding up in court, according to a top constitutional law scholar at Marquette University.
The suit was filed in Pensacola, Fla., after President Barack Obama signed the health care reform bill into law last week.
Florida Attorney General Bill McCollum is taking the lead and is joined by attorneys general from South Carolina, Nebraska, Texas, Michigan, Utah, Pennsylvania, Alabama, South Dakota, Idaho, Washington, Colorado and Louisiana. All are Republicans except James “Buddy” Caldwell of Louisiana, who is a Democrat.
Under Wisconsin statutes, before the Wisconsin Attorney General can file suit against the federal government, he must gain the authorization by the governor, the Assembly or the Senate.
That’s a long shot for Van Hollen, a Republican. Doyle is a Democrat, and the Democrats control both state houses.
“Wisconsin must act to protect its sovereign interests and the interests of the citizens of this state,” Van Hollen said.
Doyle called the lawsuit “frivolous.” Senate Majority Leader Russ Decker (D-Weston) also refused to authorize scarce state resources to be used “go to bat for insurance companies.”
The suit contends the bill violates the 10th Amendment, which stipulates that the federal government has no authority beyond the powers granted to it by the Constitution. The suit says the provision in the reforms that requires people to purchase health care insurance is unconstitutional.
Chad Oldfather, associate professor of law at the Marquette University Law School, does not expect the U.S. Supreme Court to rule that the suit has any merit.
“I think the short answer is there are lots of people who think it should be unconstitutional, but I don’t think there are very many people who believe it will be successful. The chances of these challenges being successful are very low, quite low,” Oldfather told BizTimes..
Over the past 70 years, the Supreme Court has upheld the principle that the U.S. Congress has the authority to “regulate nearly anything it wants to” under the “commerce power” of the Constitution, Oldfather said.
The challengers to the law are hoping that the conservative majority of the court will rule against the Democrats in the suit, just as they did in the controversial presidential election of 2000, Oldfather said.
“It would be very shocking if a majority of the Supreme Court were to agree with that. The challenges to this will be based on the hope that that’s what would take place,” Oldfather said. “In order for that to happen, the court would have to reverse itself on a whole lot of precedent. It just seems unlikely. Even with the political constitution of the current court, it’s just not likely … Trying to predict what the Supreme Court will or won’t do is certainly more art than science. There’s a chance. I just don’t think there’s a good chance.”
Van Hollen’s effort to join the federal lawsuit was applauded by Wisconsin GOP gubernatorial candidates Mark Neumann and Scott Walker.
Republicans across the country are rallying for “repeal and replace” the health care reforms. Even if they win majorities in both the House and the Senate and pass legislation to repeal the law, Obama could veto that bill. The Republicans would then need a two-thirds majority in Congress to override Obama’s veto.