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Health bill lawsuits are going nowhere

By Timothy Stoltzfus Jost, Special to CNN
  • 13 state attorneys general have filed lawsuit to challenge health care law
  • Timothy Jost says there's no legal merit to the challenges
  • He says the bill allows states to make choices and to come up with an alternate plan
  • Jost: Virginia law to nullify health law no more valid than 1950s desegregation action

Editor's note: Timothy Stoltzfus Jost is a professor of law at the Washington and Lee University. Jost, a Democrat, blogs about legal issues in health reform at

(CNN) -- A state attorney general is almost by definition a candidate for higher office. The filing of lawsuits challenging the health reform law by 14 attorneys general -- all but one of them Republican -- may look good for their next campaigns, but these cases are going nowhere legally.

The case filed by Florida and 12 other states challenges obligations allegedly imposed on the states by the statute as well as the individual insurance purchase mandate imposed by the law. The Virginia case challenges only the individual mandate, setting up against it a new Virginia law purporting to nullify it.

One of the states' claims is based on a simple misreading of the health reform law.

The lawsuit claims that it compels the states to enforce the federal law or to operate exchanges that would make health insurance available to consumers. Section 1321 gives states the choice of doing so or not, and if states elect not to do so, the federal government will enforce the law and operate the exchange in the state.

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No state has to do anything, except make its choice known to the federal government. Moreover, section 1333 of the act allows states to apply for a waiver to take a completely different approach to covering their residents if they have a better idea.

The complaint also attacks the provisions of the law that provide Medicaid coverage for all Americans whose income is under 133 percent of the poverty level. These Medicaid expansions are not effective until 2014, and the federal government pays the entire cost until 2017, after which the state's share gradually increases to 10 percent by 2020.

It is hard to understand how the states are harmed in any way by the billions of dollars the Medicaid expansions will pour into their states to cover millions of their residents, many of whom would otherwise be treated by providers without compensation. But in any event, states can simply opt out of Medicaid if they choose not to participate.

The Supreme Court has long upheld spending clause programs that require states that accept federal program funds to comply with federal program requirements, and this law simply follows those precedents.

The challenge to the individual insurance mandate is simply not legally credible. First, it is not clear whether the federal courts even have jurisdiction to hear the claim. Under Article III of the Constitution, courts may not decide hypothetical questions but rather only actual cases and controversies. The states are in no way injured by the mandate that individuals purchase health insurance, and thus should not be able to challenge it.

But the mandate is clearly constitutional. The mandate requires people who have household incomes above the tax filing limit ($18,700 for joint filers) and who are not covered by their employer or a public program to buy health insurance.

Those who earn less than 400 percent of the poverty level will get tax credits to help pay for it. People who are subject to the mandate but choose to remain uninsured will have to pay a tax, which will increase with their income up to the cost of a high-deductible insurance policy.

Under the reform legislation, insurers must take all applicants regardless of pre-existing conditions. The insurance market can only function if healthy people buy insurance, helping to share the cost burden with those who get sick. We cannot simply let people wait until they are sick to purchase it.

But more fundamentally, people who can afford insurance and don't buy it are simply being irresponsible. An auto accident or serious disease can cost hundreds of thousands of dollars. Why should the taxpayers or health care providers have to finance the care of those who refuse to buy insurance?

The Constitution gives Congress the power to regulate commerce among the states.

The Supreme Court has long held that this authority reaches all economic activity. The court has recognized as legitimate exercises of the Commerce Power the authority of Congress to prohibit the growing of a few marijuana plants on a window sill for personal medical use or to outlaw a doctor's performing of a partial-birth abortion.

Choosing whether to buy insurance or impose your health care costs on others is economic activity subject to that authority.

Virginia has passed a law purporting to nullify the federal law. But the Supremacy Clause of the Constitution provides that federal law is the supreme law of the land. Virginia's law is no more enforceable than were its laws attempting to nullify federal desegregation laws in the 1950s.

I am from Virginia. Like most states, we are in terrible shape financially, lacking money for schools, roads or health care. We cannot afford bankrolling frivolous lawsuits.

The opinions expressed in this commentary are solely those of Timothy Stolzfus Jost.