I’m not sure if you’ve heard yet, but Congress passed a health care reform bill on Sunday that President Obama is expected to sign today.
Michigan Attorney General, GOP gubernatorial candidate and The People’s Champion Mike Cox thinks it goes too far and says he’s filing a challenge to the soon-to-be law in federal court. It’s chances of success? About as good as the Lions’ chance to win the Super Bowl, says Orin Kerr at The Volokh Conspiracy.
With all this blogging here at the VC about whether the courts will invalidate the individual mandate as exceeding Congress’s Article I authority, I thought I would add my two cents by estimating the odds of that happening. In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9–0 (or possibly 8–1) vote to uphold the individual mandate.
The Volokh Conspiracy is a collection of mostly conservative law professors from around the country that blog about current themes in the law. None of them like the bill, natch, but all who have written about it on the blog seem to think it will survive court challenges.
[UPDATE: Not to be outdone, fellow GOP gubernatorial candidate Rep. Pete Hoekstra vows to do the same.]
So why do it? Why waste a broke state’s money challenging a law when other states are already planning the same thing? Probably for the same reason he keeps fighting, and losing, the Asian carp battle: because he’s running for governor.
A petition drive has also been started to try to exempt Michigan from the law, which Wake Forest law professor Mark Hall says is also futile:
Experts say none of it is likely to work, but it will keep the issue, and the outrage, alive until Election Day.
"I am surprised by the mobilization of the states. It does strike me as a kind of civil disobedience, a declaration that we’re not going to follow the law of the land," said Mark Hall, a professor of law and public health at Wake Forest University.
"It doesn’t make sense. The federal Constitution couldn’t be any clearer that federal law is supreme," Hall added.
Which is what the GOP wants: to turn the 2010 election into a referendum on health care with talk of repeal and such. Will that work? Conservative columnist David Frum says nuh-uh:
No illusions please: This bill will not be repealed. Even if Republicans scored a 1994 style landslide in November, how many votes could we muster to re-open the “doughnut hole” and charge seniors more for prescription drugs? How many votes to re-allow insurers to rescind policies when they discover a pre-existing condition? How many votes to banish 25 year olds from their parents’ insurance coverage? And even if the votes were there – would President Obama sign such a repeal?
We followed the most radical voices in the party and the movement, and they led us to abject and irreversible defeat.
Frum, a former Bush speechwriter, said the GOP should have taken Obama’s offer of bipartisanism to work more conservative elements into the bill. But cooperation and bipartisanism doesn’t win elections.