Governor Jan Brewer announced Tuesday that Arizona will join 15 other states in a lawsuit challenging the constitutionality of the federal health care legislation. Bravo! Attorney General Terry Goddard, a Democrat, had refused to sue on the pretext that the suit had little merit and the associated costs would be exorbitant. Although technically the Governor is authorized to appear on behalf of the state in legal matters, the legislature eliminated any doubt by passing a bill in special session last week authorizing the Governor to file the suit. Joseph Kanefield, the Governor’s general counsel, will represent the Governor and the State. The cost will be no more than a few thousand dollars.
Do the states have a realistic chance of prevailing? Absolutely. But the going may be a little tricky. The Supreme Court will need to reconsider the purposes and parameters of the commerce clause.
Prior to the Constitution, opportunistic states would issue their own currencies and levy tariffs on goods passing through their borders. The Constitution’s commerce clause empowered Congress to break down these barriers to commerce and trade among the states.
Beginning in the era of FDR’s New Deal, the Court allowed Congress to regulate all sorts of activities that clearly aren’t commerce but could affect interstate commerce. In Gonzales v. Raich, for example, the Court upheld the power of Congress to enforce federal anti-marijuana laws even though California permitted medical marijuana.
It’s a safe bet that the Court would view the regulation of health care as legit since those healthcare accounts for one sixth of the nation’s economy. Never mind that Congress forbids the purchase of insurance across state lines.
But here the tide turns. The mandate that all Americans be required to purchase government-approved health insurance exceeds even the most generous interpretation of commerce clause power. As David Rivkin, Jr., counsel for the state plaintiffs points out, “The remarkable thing about an individual insurance purchase mandate is you are not being subject to a requirement by virtue of any economic activity you engage in — you’re not doing a damn thing; you just exist.”
The Constitution creates a federal government of enumerated powers, the rest being the province of the states and the people. The mandate to purchase health insurance undermines not only federalism but also freedom. The Court just might get it right.
Amy H Laff is a StateBrief.com partner. A graduate of Univ of Penn and Stanford Law School, Amy practiced law and mediation on the east coast before relocating to the Valley, where she founded and chairs the AZ chapter of the Republican Jewish Coalition. Amy makes frequent media appearances, including AZ Law Channel and Tony Katz Radio Spectacular. Additionally, she works with companies and candidates on branding and communication. 
