Under new Bill, Health insurance is a must, but now you can easily find health insurance for your family under $40 http://ow.ly/1Jkvo

This was an interesting read. So far I've been critical of McKenna's actions and the lawsuit as a whole.

Question: what specific cases are there that make a distinction between "activity" and "inactivity" that would be relevant to the Commerce Clause?

I don't see the issue here. The (county) government forces me to pay Waste Management to provide garbage pick-up even if I don't want it, and it does so in the name of the greater good (so I don't have garbage lying around which will eventually negatively affect my neighbors.

The school district requires me to buy vaccine for my kids from a private, profit making drug company in the same way.

I didn't notice the attorney general getting concerned about those issues.

Perhaps Mr. McKenna has become a Born Again Strict Constructionist and has found a message from God in the 10th Amendment, but if that is true, I'm pretty sure that'll wear off after the GOP primariy for whatever it is he decides to run for next, professional politician, non-Tea Partier that he is.

Goforride: Where you get it wrong is the government that forces you to pay Waste Management is local government, not the federal government. Same with the school district. Local and state governments can assert all sorts of powers that the federal government cannot.

I’d say that State AGs’ suit challenging the new health care reform statute needs an additional cause of action. The 10th Amendment claims are ok, but there’s a better claim.

The objectionable aspect of this new law is everyone (not covered by employer plans) will be required to buy health insurance from a private carrier, or be fined by the IRS. The apparent problem with that is there is absolutely no uniformity Americans would experience under this new law. People and businesses would be subjected to very different sets of insurance contracts, and state laws and regulations pertaining to those contracts, depending on where they live. That is because the business of insurance always has been exclusively (and heavily) regulated at the state level.

The significant differences among states when it comes to the legal, regulatory and judicial frameworks governing the relationships between insurance contract customers and the several private insurance companies each state allows to sell insurance contracts within their respective boundaries would mean Americans would be treated very differently, depending on where they live.

Some people would become second-class (and third- and fourth-class) citizens, depending on which state’s sanctioned insurance products this federal legislation would force them to buy, and how they would be treated as parties to those insurance contracts.

That aspect of this new bill may mean it would come up short under a 5th Amendment due process analysis. Under well-established precedents, the 5th Amendment’s due process clause includes an “equal protection” element, and that is what may be implicated (http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution#Due_process).

The analogy made to how it has been deemed proper to force people to buy (via taxes) Social Security, federal unemployment compensation and disability “insurance”, and Medicare is not a good one. There are nationwide and uniform rules, regulations, and treatment of citizens that pertain in those programs, no matter which state an individual lives in. There is only one “insurer” for those programs – the federal government – and people in different states are afforded substantially identical rights and benefits. In contrast, people would not be treated equally under the HCR law because private insurance company, and insurance product regulation, has developed in very different ways in the different states.

The insurance companies licensed to sell specific health insurance products in each state function as a state-sanctioned cartel. The insurance contracts each state’s cartel offers vary from state to state. What business X in Louisiana can buy in terms of health insurance varies from what business Y in Alaska can buy. That’s due to who exerted what influence on the respective legislative leaders in the various states over the years.

Coercing people in different states to enter into, and try to obtain the full benefits of, such varied sets private insurance contracts denies those people the equal protection of this new law. Some citizens will be protected more than others. Disparate treatment would prevail as there are 50 completely different sets of layers of rules – including legislation bearing on insurance, state agency regulations, and case law – that people of the different states would be subjected to.

All of those differing contract terms and layers of rules, laws and regulations came into being over decades in an environment where buying any insurance contract was voluntary, not mandatory. Now that it’d be mandatory, those 50 different layers of rules, laws and regulations throughout the country will diverge even more, creating greater inequities among citizens (depending where they live). Significant changes going forward also can be expected in all the states, as the various state regulatory bodies approve new and amended terms for both individual and employer plans. In addition, the new statute itself creates disparities. For example, some states will set up “high risk insurance pools” and others will default to letting the federal government assume responsibility in that area.

The disparate treatment wouldn’t end with the different forms of private insurance contracts and the different insurance laws and regulations among the states. For example, people in Washington state would not receive as much protection under this new law as will people in other states. Our legal system does not allow awards of punitive damages, which means individual insurance customers in this state would be at a significant relative disadvantage in court trying to prevail in the event their insurance company does not treat them properly. Further, most states have some kind of consumer protection statutes pertaining to legal actions against insurance companies, but those vary widely among the states.

The existence of a meritorious challenge along these lines could be fleshed out by having lawyers address questions such as these: 1) are there any comparable statutes, that is, statutes that have been upheld against a Fifth Amendment due process claim, and stated somewhat differently, 2) has there ever been federal legislation with such disparate impacts on people in the 50 states surviving a Fifth Amendment “equal protection” challenge?

Oh, I think we can do the short form here- if the five rightwingers on the Court think they can reach out and legislate from the bench, they'll do it.

arthurking-

Yes, I agree with you that there is a fine distinction here and indeed a point to be made regarding federalism, but Mr. McKenna has never presented himself as one who sweats those details.

Though if one wants to keep the razor-sharp pencil to the paper, the health care bill doesn't require anyone to buy anything. It does say, though, if one chooses not to buy health insurance, one will pay a tax to help offset the public burden that may very likely occur if one gets sick and is uninsured. Thus, McKenna's lawsuit is doomed at first consideration and stands out more of a tea-party invitation than a faithful defense of the Tenth Amendment.

Wouldn't it be ironic if Congress' unwillingness to pass one of the biggest cost-savings measures proposed, allowing people to buy insurance across state lines, scuttles the individual mandate requirement. If a person who lives in a high insurance-cost state (say, because the state requires policies to cover sex change operations or psychotherapy) could buy his policy in a low insurance-cost state (which only mandates basic coverage), that would be interstate commerce. By building insurance firewalls around the individual states, to protect the high-cost states, whose mandates customers would obviously flee, they may have doomed the only cost containment measure in the entire package.

Good article. Thank you Mr. Chasan and thanks also to Crossrip; I have followed some of the legal arguments on this issue (Volokh) but I have not read the 5th Amendment argument before. Sounds plausible. I am not a lawyer.

Mr. Chasan fails to address the grave jurisdictional problems with this lawsuit. Article 3 of the Constitution only allows the federal courts to take cases where there is a current, actual controversy or alleged injury. No one will be required to buy health insurance or pay a tax penalty until 2014 (they won't have to pay any tax penalties until 2015). So the issue is not ripe, and courts have long held that issues can't be litigated until they are ripe. Second, the states face no obligation under the individual mandate law, only individuals do. So the states have no standing to bring suit on that issue. The two uninsured individuals who were added to the suit may or may not be qualified to challenge the law when the case becomes ripe in 2014 because their personal situation may change (e.g., they may have obtained coverage). So there are major jurisdictional hurdles the plaintiffs must overcome before they can reach the merits of their case and get it to the Roberts Supreme Court.

It's nice that our state Attorney General has strong opinions about how to fix the health care system. I wish he was this interested in law enforcement issues! I think he's just marking time till he can run for higher office at this point.

Just as they are exempt from a lot of the laws under which the rest of us labor, members of indian tribes are not required to buy health insurance under the act.

In response to dbreneman's comment, there are actually several major provisions in the health reform law that allow or require interstate sales of health insurance. First, states can agree to establish a common health insurance exchange, where plans would be sold to residents of all the participating states or parts of the states. Some states are expected to take advantage of that, particularly where the natural market crosses state lines or in more rural states where otherwise there wouldn't be enough health plans or population to create healthy competition. Second, the law requires the federal Office of Personnel Management to contract with two multistate plans to offer coverage through each insurance exchange. Three, the law allows states to form compacts to allow insurers based in those states to sell insurance into any of the participating states, subject to the regulations they agree on. So even on its face, the health reform law affects interstate commerce.

The issue, Harris (if I may be so familiar), is that people aren't allowed to buy insurance across state lines, the way they can buy, say, refrigerators or canned goods. I'd question whether a compact entered into between states, to offer a product that can only be purchased through the government of a person's state of residence, is really interstate commerce. In either event, it does nothing to help people find cheaper insurance, because it would not be in the interest of states which mandate expensive lines of coverage to team up with states that don't. If anything, such "insurance cartels" might be considered monopolist restraint of trade.