Legal base for healthcare suit examined

HAMPTON ROADS, Va. (WAVY) - Once Virginia Attorney General Ken Cuccinelli filed a civil complaint in federal court against health care reform, 10 On Your Side went over the document with constitutional scholars.

Constitutional Law professors from the College of William & Mary and Regent University say the suit is based on true constitutional concerns.

Regent Professor Bradley Jacob explained Virginia's argument: "Congress can only regulate the way stuff is handled in commerce. They can't tell private citizens that they have to buy something. That's really the heart of the lawsuit."

Congress justified parts of the new law using a commerce clause in Article 1 of the U.S. Constitution. The clause allows Congress to regulate interstate commerce. It does not explicitly allow legislators to make private citizens purchase something.

Section 1501 of the Patient Protection and Affordable Care Act requires some individuals to purchase health insurance.

William & Mary Constitutional Law Professor William Van Alstyne told 10 On Your Side, "There is a good likelihood that parties who might resist this particular part would have an excellent chance of resisting this part of the legislation in the federal courts."

In the complaint, Virginia told the court individual residents are neither "a channel of interstate commerce," nor "a person or thing in interstate commerce." Those terms are guides for application of the clause.

But Jacob said since the 1930s, the Supreme Court has interpreted the commerce clause broadly.
"They've basically taken the position that Congress can do anything because any human activity impacts interstate commerce."

Van Alstyne said he believes forcing a private citizen to make a purchase may cross a constitutional line.

"What power is possessed by Congress to compel you to enter into a commercial transaction - but from you're own point of view is not desirable. That's a very good constitutional question," Van Alstyne said.

Cuccinelli is convinced the answer will force the highest court in the land to agree with the Commonwealth and "declare [the individual purchase mandate in the law] is unconstitutional... and exceeds... powers conferred upon Congress."

Scholars are not as confident.

Jacob offered, "They would have to really be changing decades of precedent. It would be a mammoth overhaul of the law. I don't think [the Supreme Court is] going to go there. I think the lawsuit is going to lose in the end."

Jacob tempered the thought with an explanation that the court could decide to rule only on Congress' ability to force a purchase, and not the rest of the law.

"It's possible it's enough of a stretch that the Supreme Court could say, 'No. This goes beyond the power of Congress' without overturning the whole apple cart."

For Van Alstyne, "It's not clear that a state is in a position to litigate the constitutionality of that particular provision (individual purchase mandate), because the states as such, are not affected by that particular provision." Van Alstyne said he could see an individual successfully petitioning the court.

There are also political implications connected to the suit. Virginia's Attorney General Ken Cuccinelli is a Republican.

Immediately after Cuccinelli filed the complaint in U.S. District Court, Northern Virginia Democratic Delegate David Englin launched an internet campaign to rally Virginians who support the health care law. Englin said the suit is a misuse of taxpayer money.

No estimates are yet available for the long term financial costs of the case.