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The Critics Aren't Wrong About Health Care Lawsuit

Posted: 10/28/10 11:01 AM ET

Last week, the Texas attorney general lambasted his critics for saying he shouldn't have sued the federal government over health care reform. In his op-ed published in the Houston Chronicle ("Critics were wrong about states' health reform case," Page B7, Saturday), the attorney general relied on a ruling by a lower court that allowed two of six litigation claims to proceed to the next level of litigation: a summary judgment, where evidence will first be considered by the lower court. The court dismissed claims of state sovereignty and the claim that mandatory insurance violates individuals' substantive due process rights.

Lower federal courts now disagree on the constitutionality of the health care reform act. Appeals are sure to result, and the U.S. Supreme Court should ultimately rule. No one expects settlement of such suits, just as the Texas attorney general's placement of Texas into litigation on behalf of Arizona's immigration law won't be settled.

I predict that a majority of the U.S. Supreme Court will rule against the health care lawsuit filed by the minority of attorneys general in the U.S. choosing to attack health care reform. Why?

The Supreme Court, in 2005, emphasized and contrasted the great power of Congress under the Commerce Clause to regulate interstate commerce versus much more limited federal power under the discarded Articles of Confederation. And the modern Supreme Court has emphasized the importance of congressional findings to prove claims that regulatory laws have a rational basis. Congress met this legal criterion in the health care law passage.

Congress put significant evidence into the record that failure to buy insurance affects interstate commerce. The report from the Senate Committee on Finance concluded that "health reform is an essential part of restoring America's overall economy and maintaining our global competitiveness."

The report detailed 93 percent increases in average family premiums from 2000 to 2009. Rising health care costs play a huge role in bankruptcies affecting millions every year. Hospitals and clinics provide tens of billions of dollars yearly in uncompensated care. The result: a hidden health tax of larger medical bills and higher premiums. The average family pays $1,000 in increased premiums as a result of uncompensated care.

We know of mandates in the context of health care law. Health care providers, saving lives daily in our emergency rooms, live with federal mandates. Congress mandated that health care providers in emergency departments and ambulances provide emergency care to anyone in need, including the uninsured and underinsured. The law applies in every hospital accepting federal payments, creating unfunded burdens on responsible units of government, taxpayers and corporations.

The Texas attorney general lobbied for and passed a 2009 law mandating the attorney general implement a statewide program for children's health care in child support cases involving unavailability of reasonable cost health insurance, recognizing "Federal law requires parents in the child support system to provide health coverage for their children."

The judge in the health care law case involving the Texas attorney general recognized the highly controversial nature of the health care reform law and believed the issue of requiring insurance purchase is novel. His bottom line: The novelty of mandating insurance "does not necessarily mean that it is 'unconstitutional' and 'improper.'" He concluded: "In this order, I have not attempted to determine whether the line between Constitutional and extraconstitutional government has been crossed." We will learn more about his opinions after the summary judgment phase. And after that, we will wait a long time as the higher courts hear appeals.

Is this kind of litigation the best use of our states' resources? If you don't agree with what our elected congressional representatives pass, is this the best way to disagree?

I suggest that this type of lawsuit makes a political statement of disagreement. These kinds of lawsuits cannot be settled and don't solve problems. They should be filed with great caution. In 2010 we saw much such political litigation against the federal government, over pollution regulation, federal education money, the drilling moratorium and more. Such litigation has solved nothing, and has not benefited Texas.

(This op-ed appeared in the Houston Chronicle on Wednesday, 27,2010.)

 

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