With the President earlier today signing the Health Care Reform Act as passed by the Senate and House, opponents have already responded with a flurry of lawsuits. According to National Public Radio, thirteen states’ attorneys general have filed paperwork to begin the constitutional litigation process of trying to overturn HCR.
Under particular attack will be the mandate provisions that require citizens to purchase health insurance and requiring businesses with more than 50 employees to provide health insurance to employees. In pursuit of seeking to have courts declare the new law unconstitutional one of the underpinnings will be the Tenth Amendment of the United States Constitution. The Amendment itself, part of the Bill of Rights, is not lengthy.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
For most of its time as part of the Constitution, the Tenth Amendment has been ignored by the courts. In the case of United States v. Sprague (1931), the U. S. Supreme Court famously referred to the Tenth Amendment as a “truism” that “adds nothing to the Constitution.” Only two statutes have been ruled unconstitutional based on the Tenth Amendment in the last 55 years. But, those two are recent, both in the 1990’s. In other words, the Court has shown more inclination to consider Tenth Amendment claims recently than it has historically, giving hope to opponents of HCR.
The Tenth Amendment is already being put forth as the basis for a constitutional challenge by the Attorneys General of the thirteen states bringing suit, as reported on Fox News. According to NPR, twelve of the thirteen attorneys general are Republican, while Louisiana’s is a Democrat. A brief overview of the Tenth Amendment, its history and use in the courts is here .
Those seeking to nullify the law will no doubt argue that HCR is unique in American history. HCR purports to federally require all citizens to purchase a product or service from private companies. Those defending the law will point to state insurance requirements on motor vehicles. The response to that will be that vehicle insurance laws are state laws, not federal, and that ownership and operation of a vehicle remains an individual choice. And, on and on the legal arguments will circle.
From a political perspective, the filing and early stage prosecution and defense of these lawsuits will likely overwhelm any attempt by proponents of HCR to laud the virtues of the bill in the media or before the public. The national discourse will turn to the legal arguments and progression of the lawsuits, not the actual content of the statute. The ensuing national debate on the meaning and value of the Tenth Amendment promises to be every bit as heated, and every bit as partisan, as the debate on the bill itself.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.