Reaction to these constitutional challenges from legal experts both in and out of government has been cool [4], bordering on dismissive [5]. Among constitutional scholars, the puzzle is not how the federal government can defend the new law, but why anyone thinks a constitutional challenge is even worth making. Even constitutional experts ideologically inclined against broad federal government power advance arguments against the law with some caution, noting that, as law professor Randy Barnett put it, "the smart money says there won't be five votes" for the states among the justices. They even linger on constitutional amendment as a possible recourse [6], knowing full well that our Constitution makes amending the Constitution almost impossible [7].
Yet it is a mistake to write off these lawsuits as impotent or insignificant gestures. Whatever their legal weaknesses, they contain a lesson or two for progressives and the Obama administration about the nature of constitutional change and its relationship to American politics.
Even a cursory glance at the Florida and Virginia complaints reveals that neither lawsuit really turns on a plausible reading of the law today. Florida's raises three constitutional challenges: That the "individual mandate" is outside of Congress's enumerated powers; that the law as a whole infringes on state sovereignty protected by the Tenth Amendment [8] to the Constitution; and that the tax penalty imposed on people who get no insurance is a "direct tax" that Article I of the Constitution says must be apportioned by population. Virginia's complaint includes only the first of these.
Under existing law, not one has merit. First, as to the challenge to the individual insurance mandate, the Supreme Court as recently as 2006 confirmed that the federal government has broad power to impose comprehensive regulation for national markets and even to reach individual decisions to opt out of a national market. In the healthcare context, these opt-out decisions clearly have an impact [9] of the rest of the national market. So the case for an individual federal mandate is especially strong. Second, courts have consistently held that a federal regulatory program doesn't infringe on a state's sovereignty if the state can opt out. As Florida concedes, it can drop out of Medicaid as expanded by this week's law--it's just that Medicaid is too gosh darn popular. The state's claim to be coerced by its own voters is likely to fall on stony ground in the courts. Third, if the "direct tax" argument had merit--and it doesn't for technical reasons--malapportioned tax rules such as the mortgage interest exemption will get the heave-ho. With collateral damage like that it's hard to see a federal court taking that path.
The absence of arguments on the merits is the least of the state plaintiffs' problems. Federal courts have long insisted that plaintiffs be personally and imminent affected by a challenged law. But rather obviously, the individual mandate does not apply to states, and there's no reason states must stand in for individuals. Even in the Liberty University suit, it's hard to see why harm is imminent. No tax penalty for an individual's failure to obtain insurance kicks in until 2014 [10]. Even in 2014, the recalcitrant uninsured face a penalty of only $95, rising to $750 in 2016. All this also assumes that Congressional Republicans do not amend the law in the interim.
Highly speculative and doctrinally out-to-sea, these suits cannot be about the law. As their timing shows, they are a continuation of politics by other means.
Both state suits were filed by attorneys general who are separately elected in places where that office is a steppingstone to higher office. Current Florida Governor Charlie Crist used a four-year stint as attorney general to launch his gubernatorial career [11]. Virginia Attorney General Ken Cuccinelli's suit follows his criticism [12] of discrimination rules at colleges protecting gays and lesbians. (Cuccinelli's conception of "freedom" is apparently flouted by the hypothetical payment of $95 four years' hence but unfazed by the prospect of verbal or physical abuse on the basis of sexuality).
There is, of course, no small irony in this conservative retreat to the federal courts. Conservatives have long charged liberals with "judicial activism" [13] or condemned them for taking issues away [14] from voters and into the courts. Even though the health care suits are naked requests for do-overs from the sore losers of an intense, year-long debate, I somehow doubt that either the Wall Street Journal or Fox News [15] will decry the plaintiffs as they have bewailed efforts to ensure gays and lesbians the elementary dignity of equal access to marriage.
Yet irony never won one anyone an election. As politics, the states' lawsuits seem to be roaring successes. One national telephone poll [16] found an astonishing 49 percent in favor of the suits.
These lawsuits instead seem to resonate with deeply felt, if sometimes inchoate sentiments about the proper role of the federal government, the states, and individual liberty conceived in terms Mr. Cuccinelli would endorse. For instance, state sovereignty arguments springing from the Tenth Amendment, which "reserve[s]" power to the states and the People, play starring roles in the suits. They also have play a significant part in the tea party movement [17]. In filing these lawsuits, the attorneys general and their allies have picked up on an emerging current of popular constitutionalism, and ratified it with the dignity of official sanction and a space on the national political stage. Even if these suits fail, the constitutional ideas that animate the complaints and that bubble through tea party rhetoric will be raised again to the attention of a wide public and given new credence. The proponents of such ideas may be state attorney general today. But it is not implausible to see in them the governors, senators or vice-presidential candidates of tomorrow--shaping, among other things, who gets on to state and federal benches. It is precisely this interaction of popular mobilization and elite maneuvering that generates constitutional change, such as the recent emergence of an individual right to bear arms.
By contrast, one is hard-pressed to find any such movement linking popular constitutionalism and effective national political actors on the progressive side. These lawsuits should thus be an embarrassment and worry for progressive constitutionalists, who have not articulated a general vision of the Constitution that finds resonance among a wide populace. They should be an embarrassment for the White House, which has generally opted for "safe" and "moderate" [16] picks for the federal bench--not judges with vision. On the right, judges pick up and carry forward popular constitutionalism impulses. On the left, they play a fragmented defense that Obama apparently doesn't care to improve.
Until progressives have anything like the same movement or passion for constitutional change, they are unwise to take these suits lightly. Challenges to healthcare may not prevail today. But, given current trends in progressive constitutionalism and judicial appointments, no one should be placing any bets on tomorrow.