March 24, 2010 10:12 PM UTC

Experts To Suthers: Good Luck With That

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• by: Colorado Pols

The opinions are starting to come in on the viability of the lawsuit filed by (mostly) Republican attorneys general against the passage of federal health reform legislation, including Colorado AG John Suthers–consensus? Not a hope in hell, folks. Starting with the Denver Post:

Louisiana Attorney General James “Butch” Caldwell is the only Democrat joining the lawsuit. The others represent Colorado, Alabama, Idaho, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington state. Virginia’s Republican attorney general, Ken Cuccinelli, filed a separate suit.

Several noted law professors said there are significant legal hurdles in establishing the states’ standing to challenge the health care law and in convincing federal judges that it violates the Constitution.

Congress is empowered by the Constitution to regulate interstate commerce. Some opponents of the new law argue that Congress’ mandate that individuals must purchase insurance from private vendors is unprecedented, because uninsured individuals aren’t participating in commerce. Many constitutional law experts, however, said that the health insurance mandate is clearly within Congress’ reach under the Constitution.

“It would be surprising if the (Supreme Court) says Congress can’t regulate people who are participating in the $1 trillion health care market,” said David Freeman Engstrom, a Stanford University Law School professor. “The lawsuit probably doesn’t have legs both as a matter of precedent and as a matter of common sense.”

In the Huffington Post today, Sam Stein writes that the fundamental basis of this lawsuit, the constitutionality of the individual mandate to obtain health coverage, is off-base:

It’s called the “Empowering States to be Innovative” amendment. And it would, quite literally, give states the right to set up their own health care system — with or without an individual mandate or, for that matter, with or without a public option — provided that, as Wyden puts it, “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?” [Sen. Ron Wyden] 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?”

And you know, it’s a funny thing about that much-reviled unconstitutional treasonous health insurance “mandate,” reports the Miami Herald:

“The truth is this is a Republican idea,” [Pols emphasis] said Linda Quick, president of the South Florida Hospital and Healthcare Association. She said she first heard the concept of the “individual mandate” in a Miami speech in the early 1990s by Sen. John McCain, a conservative Republican from Arizona, to counter the “Hillarycare” the Clintons were proposing.

McCain did not embrace the concept during his 2008 election campaign, but other leading Republicans did, including Tommy Thompson, secretary of Health and Human Services under President George W. Bush.

Seeking to deradicalize the idea during a symposium in Orlando in September 2008, Thompson said, “Just like people are required to have car insurance, they could be required to have health insurance.”

Among the other Republicans who had embraced the idea was Mitt Romney, who as governor of Massachusetts crafted a huge reform by requiring almost all citizens to have coverage.

“Some of my libertarian friends balk at what looks like an individual mandate,” Romney wrote in The Wall Street Journal in 2006. “But remember, someone has to pay for the health care that must, by law, be provided: Either the individual pays or the taxpayers pay. A free ride on government is not libertarian.”

Gosh, folks–what happened, do you suppose? What turned the individual mandate from a Republican idea championed by Mitt Romney and John McCain, into something that “violates constitutional principles and lacks constitutional authority,” like Suthers said Monday? Because with the possible exception of January 20th, 2009…we can’t think of anything.