I don't doubt the political sincerity of 14 states suing the feds challenging the constitutionality of the insurance mandate provision in the new health reform law. It is the legal premise I find wanting and deliciously ironic.
Let me describe it in this framework. These state attorneys general are betting on a 100-1 horse gambling that years of precedent will be overlooked and the 5-4 conservative political makeup of the U.S. Supreme Court will rule in favor of limiting the powers of Congress.
What is ironic is that Justice Antonin Scalia, the brightest and most outspoken conservative on the bench, ruled as recently as 2005 Congress has the authority "to regulate commerce," including "noneconomic local activity" as "a necessary part of a more general regulation of interstate commerce."
Where it gets really delicious is the case involved federal powers over growing marijuana for personal use.
The states contend the feds do not have the power to force an individual to buy a product offered by a private company. They cite Article I of the constitution which includes the commerce clause. Under the new law, mandates will go into effect in 2014 and non-complying individuals will be fined $750.
David B. Rivkin, a Washington lawyer who is representing 13 states, said "Ours is a government of limited and enumerated powers. And there has to be a limit." He also argues health insurance is regulated by the individual states.
"In my view, there is a less than 1% chance that the courts will invalidate the individual mandate," said George Washington University law professor Orin Kerr, a former clerk to Justice Anthony Kennedy.
Adam Winkler, who teaches constitutional law at UCLA, takes a more pragmatic political view.
"When it comes to the hot-button, partisan issues that divide Americans, precedent rarely dictates how the court will rule," he said. The "court has already shown itself to be willing to break from long-standing precedent in major cases, and it won't likely be deterred by such case law in a challenge to healthcare reform."
On the flip side, Winkler pooh poohed the premise Congress cannot penalize someone for "doing nothing," such as not buying health insurance.
"If you don't believe me, just 'do nothing' this April 15 when your tax bill is due," he said.
(Note -- Quotes in this column courtesy of the Los Angeles Times.