Reporting from Washington—The conservative counterattack on President Obama's overhaul of health insurance will take center stage in the courts this week when Republican state attorneys general and a leading small-business group urge a federal judge in Florida to strike down the law before it can take effect.
They contend Congress does not have the power under the Constitution to require all Americans to have health insurance. They also say states cannot be pressured to spend more to cover low-income families.
The legal attack comes as some polls show a majority of Americans dislike the health care measure, and Republicans are campaigning for Congress on the promise they will try to repeal it.
Last year, as the lawsuit took shape, it looked to be a long shot. Legal experts on the left and right said that, since the late 1930s, the Supreme Court has said Congress has broad power to regulate all aspects of the economy.
But on the eve of the court hearing in Florida, some defenders of the law acknowledge that they are less confident that a judge will toss out the lawsuit entirely.
The challengers "feel they have a political tailwind behind them," said Simon Lazarus, counsel for the National Senior Citizens Law Center. "They are getting out their political message, and judges are affected by what's going on in society."
Florida Atty. Gen. Bill McCollum has chosen a favorable forum for the lawsuit. He filed the complaint in Pensacola, in the conservative northern district of the state, and it was assigned to U.S. District Judge Roger Vinson, an appointee of President Reagan. From there, the case would probably move to the U.S. Court of Appeals in Atlanta, which also has a conservative reputation.
Attorneys general from 19 other states joined the Florida suit. They represent Alabama, Alaska, Arizona, Colorado, Georgia, Indiana, Idaho, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington.
Virginia Atty. Gen. Ken Cuccinelli filed a separate suit, and last month a federal judge in Virginia strongly hinted that he was inclined to strike down all or parts of the law. "Never before has the Commerce Clause … been extended this far," U.S. District Judge Henry Hudson wrote in rejecting the Obama administration's plea to dismiss Virginia's complaint.
The administration argues that the only way to regulate the national health insurance market is to make sure everyone who can afford to do so pay a fair share of the cost.
Until now, "uninsured individuals, as a class, have shifted billions of dollars of health care costs each year to others … including providers, insurers, governments and, ultimately, their fellow citizens," the Obama administration lawyers said. The requirement to have "minimum coverage" takes effect in 2014, and by 2016 those who do not have health insurance would face a tax penalty of about $700 a year.
The suits against the law highlight the conflict in two strands of conservative legal thinking. In recent decades, most conservatives have argued that judges should defer to elected lawmakers and not "legislate from the bench." The administration's lawyers cite that principle and say judges have no basis for second-guessing an intricate law that was debated and passed by the House and Senate.
However, libertarian conservatives have maintained that judges have a duty to protect liberty and free markets and to strike down laws that go too far in regulating individuals or business.
In the Florida suit, the state attorneys general agree that Congress can regulate business and commerce, but they say the health care mandate "rests upon the incredible contention that inactivity — the failure to have health insurance — constitutes economic activity."
In this week's hearing, Judge Vinson will hear arguments on whether to dismiss the suit or move toward a ruling on the constitutionality of the law.