March 24, 2010

Challenging the constitutionality of the Patient Protection and Affordable Care Act

By Challenging the constitutionality of the Patient Protection and Affordable Care Act

Author:  Damien M. Schiff

This week, the attorneys general of fourteen states filed two lawsuits in federal district courts in Florida and Virginia, challenging the constitutionality of the Patient Protection and Affordable Care Act (PPACA).

The Florida suit, brought by 13 attorneys general, raises a number of constitutional claims against PPACA:  (1) by forcing the states to participate in the PPACA programs and shoulder significant costs, the law denies the states' citizens their right to a republican form of government under Article IV, section 4, of the Constitution, as well as "commandeers" the states' legislatures and employees as federal agents in violation of their reserved power under the Tenth Amendment; (2) PPACA's individual insurance mandate constitutes an unapportioned capitation or direct tax in violation of Article I, sections 2 and 9; and PPACA's insurance mandate exceeds Congress's power to regulate interstate commerce, because the failure to obtain insurance is not a commercial activity, nor is it an activity whose regulation is essential to vindicating a larger regulation of economic activity.

The Virginia suit, brought only by Virginia, contends that PPACA exceeds Congress's Commerce Clause power.  An interesting distinction between Virginia's and the other thirteen states' Commerce Clause arguments is that Virginia has passed a law guaranteeing its citizens the right not to have to obtain health insurance.  Presumably Virginia will contend that its interest in vindicating that law creates a justiciable controversy now (even though the insurance mandate doesn't go into effect until 2014).

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