States take legal action against health law

The New York Times reports on the lawsuit challenging the new health law brought by 20 states. "Some legal scholars, including some who normally lean to the left, believe the states have identified the law's weak spot and devised a credible theory for eviscerating it. … The power of their argument lies in questioning whether Congress can regulate inactivity — in this case by levying a tax penalty on those who do not obtain health insurance. If so, they ask, what would theoretically prevent the government from mandating all manner of acts in the national interest, say regular exercise or buying an American car?"

But congressional "bill writers took steps to immunize the law against constitutional challenge. They asserted in the text that the insurance mandate 'substantially affects interstate commerce,' the Supreme Court's standard for regulation under the Commerce Clause. They labeled the penalty on those who do not obtain coverage an 'excise tax,' because such taxes enjoy substantial constitutional protection. … But the central challenge concerns the Supreme Court's interpretation of the Commerce Clause, as expressed in four decisions handed down over 63 years. If the court interprets the clause broadly, as it did in two seminal cases on the subject, the health insurance mandate is likely to survive" (Sack, 5/10).

Providence Journal: Rhode Island Democratic Attorney General Patrick C. Lynch "says he will not join the 20 attorneys general who are challenging the constitutionality of the new federal health-care law. ... The attorney general, a candidate for governor, announced his position Monday in response to a letter from Governor Carcieri that called on him to challenge the constitutionality of the legislation" (Freyer, 5/11).