Several publicity hungry attorneys general have filed suit to have the Health Care bill, or portions thereof, declared unconstitutional. They are using the same overheated rhetoric that the Republican Congresspersons and Senators used. To us sane people, particularly us sane lawyers, the idea that this mild mannered health care bill is an “unprecedented expansion of government power” is bewildering. 14th Amendment anyone? Presidential war-making powers? Any of a hundred other examples?
That being said, I have to say that the prospect of success for this lawsuit is fairly good, considering that, if one simply looks at the state of the law today, it totally lacks merit. We no longer live in a country where the judicial system conforms to certain norms. That period in our history ended with Bush v. Gore. It only takes 5 votes to overturn this law, or gut it, and it can be done for the most specious of reasons, no doubt dressed up in language that would lead the ignorant to believe that the result was absolutely compelled by prior case law. There is no reason to think the present court will hesitate to do what it needs to do. Note also that the attorneys general had the ability to forum shop, to file in a district where they will likely get a sympathetic judge, in a circuit where they will get a sympathetic Circuit Court, so that the Supreme Court might be able to strike down portions of the bill while making itself look moderate by narrowing the lower court decisions.
Personally, unless one of the five drops dead soon (tis a consummation …) I give the attorneys general a 50/50 chance of winning. I am writing this now just to be able to say you heard it here first, should it come to pass. I hope I’m wrong, but the fact is that we currently have a lawless court. If they don’t like this bill, and decide they must deliver for their base (Justice Thomas wife just started a group designed to siphon money from the tea party yokels by whipping up their fear and anger), they will find their way clear to sweeping away more than a century of jurisprudence.
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