Healthcare reform: Who wins when governor, attorney general clash?

Constitutional law and Supreme Court expert Robert Langran at Villanova University says McKenna’s suit has merit, but not enough to win a case.

“It might be politically incorrect but not legally incorrect,” says Mr. Langran. “The Supreme Court has held for over a century that the federal government does have the police power to look out for the welfare of their citizens (and it has held since Reconstruction that we are federal citizens and state citizens).”

Langran says the police power must be related to some federal power in the Constitution, and here it might be the spending power. The Court has often held that when Congress gives money out, it can impose conditions (unless some basic First Amendment right is being contravened). So, Langran says, the Tenth Amendment argument wouldn’t hold up.

“That train left the station 70 years ago,” says Joerg Knipprath a professor at Southwestern Law School in Los Angeles. He calls the movement among the attorneys general "political theater," and says that during the era of the New Deal, the courts greatly expanded the ability of Congress to regulate commerce.

These cases address the issue of the federal government’s right to regulate large, national industries such as health insurance companies, says Mr. Knipprath. Congress has never passed a law that imposes requirements “simply for living,” he says, but the only way to regulate something like healthcare reform’s ability to deny coverage for pre-existing conditions was to require everyone to buy into the system. “Otherwise,” he explains, “you would have unacceptable behaviors such as people waiting until they got sick to buy insurance, which would not work.”

Given legal precedents, most experts seem to agree it is unlikely that these state challenges to the federal health care law will prevail. But the clash of attorneys general versus their state governors is another matter.

“State attorneys general are constitutionally independent state officers and have autonomy in their decisions to take action on behalf of their states,” says Steven Schier, a political scientist at Carleton College in Northfield, Minn. He says the same thing could happen elsewhere, such as in California, but that given Jerry Brown’s support for the healthcare legislation, “that seems unlikely.”

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