In a recent piece for Slate, Simon Lazarus of the National Senior Citizens Law Center and George Washington University Law Professor Alan Morrison provide a sharp critique of the anti-health care reform lawsuits filed by several attorneys general. According to Morrison and Lazarus, the author of an ACS Issue Brief on the constitutionality of health insurance mandates, "The state attorneys general efforts to block health care reform aren't just wrong. They're frivolous."
Lazarus and Morrison write:
The first problem is that state governments are the wrong plaintiffs to challenge the individual insurance mandate. No state will ever have to pay a penny in taxes or be told to take out health insurance: The law applies only to individuals. The attorneys general might have attempted to plug this gap by adding individual plaintiffs to their complaints. But even if they found those people, the AGs couldn't sue on their behalf right now, because the mandate does not take effect until 2014. Between now and then, all kinds of things could cause plaintiffs to lose their standing to sue: Their health could deteriorate and they could actually need health insurance; they might get a job with health benefits; or they might just have a change of heart. Any or all of these contingencies are quite likely, if a Massachusetts state government survey showing that only 2.6 percent of Massachusetts residents do not comply with the mandatory insurance requirement in that state's law is any indication. In lawyers' language, not only will the state attorneys general never have standing to bring these claims on their own; even the claims of real individuals are not yet "ripe."
There's another barrier to the AG's lawsuits: the Tax Injunction Act. This federal statute, on the books for more than 50 years, forbids courts from "restraining the assessment or collection of any [federal] tax" whether the suit is by the taxpayer, a state attorney general, or anybody else. The tax code gives taxpayers who believe they ought not to have to pay a tax two options: decline to pay and make their objection as a defense when the IRS comes after them, or pay the tax and sue for a refund. Congress enacted these requirements to facilitate efficient tax collection, and there is no basis for the courts to carve out an exception for these suits. It's worth noting, also, that the health care law bars criminal prosecutions for failure to pay the tax at issue here.
The attorneys general are surely aware of these fatal weaknesses in their legal theory. They often fight private suits against their states by invoking doctrines of standing and ripeness, and they take advantage of another federal law that prevents similar intrusions on the collections of state taxes. But those procedural barriers appear to be of no importance to them now. Several of the AGs, including lead plaintiff Bill McCollum, are featuring the suits in their campaigns for higher office. And, of course, the suits make for great talking points in a general campaign to discredit health care reform.
[Image via celestehodges.]
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