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Legal Challenges to ObamaCare Rapidly Multiply

As a measure of the unpopularity of a law former President Clinton, Nancy Pelosi, and President Obama predicted would become more popular as the public got to read it, a burgeoning number of lawsuits seek to declare unconstitutional the Patients' Choice Act. There are also other measures in state legislatures designed to block its application.

The Thomas Moore Law Center has filed suit on behalf of individuals who refuse to purchase the mandated individual health insurance.

There’s a lawsuit filed by Virginia arguing that the new law clashes with a state law that exempts Virginians from federal fines for failing to purchase health insurance.

Twenty states now joined by a private litigant, the National Federation of Independent Businesses, have filed a complaint which challenges the constitutionality of the law.

The plaintiffs in this case at last count: Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Dakota, South Carolina, South Dakota, Pennsylvania, Texas, Utah, and Washington.

U.S. Citizens Association has filed suit in Ohio seeking to have health insurance reform overturned on the grounds that it violates individuals’ rights to medical privacy.

More than 12 states, including some who are plaintiffs in the multistate challenge, are seeking to enact legislation like that in Virginia, which would exempt from federal fine those who refuse to obtain medical insurance.

The Georgia and Oklahoma legislatures have passed measures like Virginia’s, and the Missouri legislature approved allowing a similar provision to appear on a statewide referendum in November.

As the various efforts to amend state laws and constitutions take place, the litigation proceeds. But no matter how aggressive the plaintiffs’ counsel are, these cases are not likely to lead speedily to the Supreme Court. And it is the Court which, I predict, will have to have the last word on this unprecedented legislation (and unprecedented nationwide response) unless it is repealed before it gets there:

This is going to be a long, protracted war of attrition and we haven't even seen the first wave of regulations yet," said Clint Bolick, litigation director of the Goldwater Institute -- an Arizona-based group that is advising state officials.

Supporters of the overhaul argue that if insurance were not mandated, costs would rise to prohibitive levels: Since the law will bar insurers from excluding people with pre-existing conditions the sick and elderly would be vastly over-represented in the insurance pool if other people held back. They also point to the Supreme Court's long record of upholding congressional authority to regulate the economy by imposing taxes, to impinge on personal freedoms in the national interest and to supersede conflicting state laws.

The private lawyer advising the states, David B. Rivkin Jr., a former Justice Department official under Presidents Ronald Reagan and George H.W. Bush, said he anticipated that the judge would hear arguments on the case as soon as mid-September. "It's an aggressive schedule," he said.

So far, to the best of my knowledge, only one of these cases has resulted in a formal response by the Department of Justice, which can be expected to try to delay the march to the Supreme Court as long as it can. In the Thomas Moore Law Center case seeking to enjoin the imposition of the federal mandate on a number of individuals in advance of a hearing on the merits, the Justice Department has moved to dismiss the case:

Defending the law, the Justice Department said Congress acted to address a national problem, the minimum coverage provisions were constitutional and the lawsuit was premature because no one had been harmed by the law.

"They bring this suit four years before the provision they challenge takes effect, demonstrate no current injury, and merely speculate whether the law will harm them once it is in force," the Justice Department told the court.

"Enjoining it would thwart this reform and reignite the crisis that the elected branches of government acted to forestall," the administration said in a 46-page brief made available in Washington.

In shorthand, the Justice Department is claiming that since the provision requiring individuals to purchase health insurance doesn’t take effect until 2014, the case is not ripe for adjudication.

Efforts to discuss with the Thomas Moore Law Center their response produced no reply. But it is a safe bet to assume they will argue that the harm to the individuals is not theoretical, and the law is putting into place other measures and setting into motion anticipated enforcement regulations which make the harm to their clients imminent and deserving of judicial action. In other words, the center’s case depends on what the meaning of “imminent” is.

Because the law represents such an extreme and unprecedented expansion of the Commerce Clause, I think any litigant who can establish to a federal district court’s satisfaction that it has standing to bring the suit and has a case ripe for adjudication has a very good chance of having the act declared unconstitutional. District courts should not be creating new principles of constitutional law. Instead, they are to apply previous rulings by the top court to the facts of each case. This would speed up the path to the Supreme Court resolution.

Such a ruling would encourage the Department of Justice to accede to any effort to hasten the road to the Supreme Court, when at present it is tactically advantageous for it to drag its heels in the hope that antipathy to the law will wane and any effort to undo what has happened under the law will become increasingly problematic and expensive.

While the quantity of cases challenging the law does not in itself impact the Supreme Court’s view of the merits, I think that what professor Randy Barnett has described as "the climate” in which the case must be resolved is something not to be ignored:

Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument?

...

[A] political climate such as this -- like the climate surrounding the 2000 election -- could affect the openness of some justices to constitutional arguments they might otherwise be inclined to reject.

At this moment the anti-ObamaCare climate is red hot and not cooling down with the passage of time.