Legal expert: Attorneys general lawsuit has little chance for success

Attorney General Henry McMaster in recent SCRN interview


South Carolina Attorney General Henry McMaster and 12 other state attorneys general have filed a lawsuit against the federal government against the new health care reform law. They  say the new law to is unconstitutional. The attorneys general charge that the law runs against the grain of the Tenth Amendment to the U.S. Constitution.  That part of the Constitution states the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
McMaster says, under the Tenth Amendment, the federal government has no power to coerce a person to purchase health insurance. A number of legal experts, including Jim Underwood, USC School of Law Professor Emeritus, says the lawsuit has little chance of success because of the Constitution’s Supremacy Clause.
His explanation is, “You can argue that this kind of health insurance does serve the general welfare of the people. If Congress does in fact have that power, then you have the Supremacy Clause in article VI that says that laws passed by the United States pursuant to the constitutional standards are th supreme law of the land, nothing in the states’ constitutions or laws to the contrary notwithstanding. That might very well end up trumping the states’ argument.”
Underwood says that the issue is contestable and perhaps it is good to have a resolution on this particular point.
Why bring forth a lawsuit that you have little chance of winning?  Underwood says the state attorneys general have their reasons. “I think they’re looking for clarification. They’re also looking to vindicate state power vis-a-vis the federal government. It’s not the case of the Supremacy Clause outweighing the Tenth Amendment; it’s a question of interpreting the two as they interact together.”
Underwood says a plausible argument could be made that the new law runs counter to the protection of individual rights from abuse of government powers as spelled out in the Fifth Amendment to the U.S. Constitution. “Taking private property, i.e. the purchase money and forcing that to be expended on insurance. But the contrary argument there would be it is not that clear a taking because they get a valuable product for that– i.e. the insurance which under proper circumstances pays out to them to cover medical expenses, and for some people of a certain income level may very well have some of cost of the insurance taken care of by federal subsidies for the purchase.”
It will be mandatory for most Americans to obtain health insurance in 2014, provided by their employer or purchased from the federal government or a private carrier. Those who don’t  have health insurance face fines from the IRS. People in certain income categories will be alloted government subsidies in order to buy the insurance.