Two legal contentions form the basis of the challenges coming from fourteen states. The most widespread contention is that the federal government can't force us to buy something we don't want. The second is that the federal government is not only forcing the states to spend money but that the new law is "amounts to an unprecedented encroachment on the sovereignty of the states."
The New York Times believes that the states' challenge is pretty weak and doesn't have much chance of success, even if it should reach as far the Supreme Court.
Their claims range from far-fetched to arguable and look mostly like political posturing for the fall elections or a “Hail Mary” pass by disgruntled conservatives who cannot accept what Congress and the president have done.
They seem unlikely to succeed because the law was carefully drafted to withstand just this kind of challenge.
Nothing much is changing in terms of what Medicaid already does and what it will do when expanded.
No state is required to set up an exchange. If states fail to do so, the federal government will take over. Nor is any state required to participate in Medicaid, a joint federal-state program in which Washington pays half or more of the costs.
It is true, as the suit contends, that it may not be practical for states to drop out of a Medicaid program that serves many of their poorest residents. But it is well established that Congress can attach conditions to the money it supplies, and Congress has long imposed Medicaid requirements that states must meet.
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Alexander Bolton at The Hill reports that "Republicans view Chief Justice John Roberts and the Supreme Court as a last line of defense against the new healthcare reform law." They hope. Constitutional lawyers on both sides of the country disagree.
“My copy of the Constitution doesn’t have an individual right not to be insured,” said Charles Fried, a constitutional scholar at Harvard Law School, who served as solicitor general under former President Ronald Reagan.“I am prepared to say it’s complete nonsense,” Fried said of constitutional challenges to healthcare reform. ...
... Douglas Kmiec, the chair of constitutional law at Pepperdine University, which is regarded as a conservative-leaning school, sided with Fried.
“While one can perhaps understand the sting of the loss for the GOP, these lawsuits have no real likelihood of success under long-established precedent,” said Kmiec.
Kmiec described the court’s rulings against the Violence Against Women Act and the Gun-Free School Zones Act as aberrations.“Neither of these cases has commanded great deference [or] has been applied consistently to narrow federal authority as against the regulatory power of the state,” Kmiec said.
Of course, that won't stop the effort to find a chink in the legal armor of the law. What is fascinating, though, is how thorough the Obama administration and Congress appear to have been, while framing the law, to avoid leaving areas open to challenge.
