The state attorneys general suits to stop health care reform are frivolous.

The law, lawyers, and the court.
May 5 2010 9:35 AM

Lawsuit Abuse, GOP Style

The state attorneys general efforts to block health care reform aren't just wrong. They're frivolous.

Florida Attorney General Bill McCollum. Click image to expand.
Florida Attorney General Bill McCollum

Usually it's Republicans who complain about "lawsuit abuse"—frivolous claims brought without legal merit. And yet that description perfectly fits the two complaints filed by state attorneys general to challenge the new health care reform law as unconstitutional. The Justice Department says it intends to ask the courts for immediate dismissal. If DoJ gets its wish, the courts should also seek sanctions against the politically motivated attorneys general who filed them.

Virginia Attorney General Kenneth Cuccinelli filed suit against the health care bill solo, in federal district court in Richmond, Va. Florida Attorney General Bill McCollum sued in federal court in Pensacola, Fla., on behalf of himself and 20 other Republican state attorneys general, plus one Louisiana Democrat. So far, most of the criticism of these suits has focused on the dubious nature of their substantive claim that the federal government lacks the power to require people to either purchase health insurance or pay a tax penalty. But neither of the courts handling these cases, nor any other federal court, is likely to address—let alone resolve—the merits of the issue in the context of an attorney general's lawsuit. Instead, these cases are all but sure to be promptly tossed out of court for procedural reasons obvious to a first-year law student.

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The first problem is that state governments are the wrong plaintiffs to challenge the individual insurance mandate. No state will ever have to pay a penny in taxes or be told to take out health insurance: The law applies only to individuals. The attorneys general might have attempted to plug this gap by adding individual plaintiffs to their complaints. But even if they found those people, the AGs couldn't sue on their behalf right now, because the mandate does not take effect until 2014. Between now and then, all kinds of things could cause plaintiffs to lose their standing to sue: Their health could deteriorate and they could actually need health insurance; they might get a job with health benefits; or they might just have a change of heart. Any or all of these contingencies are quite likely, if a Massachusetts state government survey showing that only 2.6 percent of Massachusetts residents do not comply with the mandatory insurance requirement in that state's law is any indication. In lawyers' language, not only will the state attorneys general never have standing to bring these claims on their own; even the claims of real individuals are not yet "ripe."

There's another barrier to the AG's lawsuits: the Tax Injunction Act. This federal statute, on the books for more than 50 years, forbids courts from "restraining the assessment or collection of any [federal] tax" whether the suit is by the taxpayer, a state attorney general, or anybody else. The tax code gives taxpayers who believe they ought not to have to pay a tax two options: decline to pay and make their objection as a defense when the IRS comes after them, or pay the tax and sue for a refund. Congress enacted these requirements to facilitate efficient tax collection, and there is no basis for the courts to carve out an exception for these suits. It's worth noting, also, that the health care law bars criminal prosecutions for failure to pay the tax at issue here.

The attorneys general are surely aware of these fatal weaknesses in their legal theory. They often fight private suits against their states by invoking doctrines of standing and ripeness, and they take advantage of another federal law that prevents similar intrusions on the collections of state taxes. But those procedural barriers appear to be of no importance to them now. Several of the AGs, including lead plaintiff Bill McCollum, are featuring the suits in their campaigns for higher office. And, of course, the suits make for great talking points in a general campaign to discredit health care reform.

Most lawyers would agree that if a case is filed in the teeth of well-established procedural barriers that obviously preclude a court from getting to the merits, that case is legally frivolous. The remedy is that the lawyers who brought the action should be required to pay the costs of defending the action, or otherwise sanctioned by the presiding judge. Given the grandstanding of these attorneys general, they have flouted in particular the federal procedural rules forbidding cases from being filed for "an improper purpose." If this isn't lawsuit abuse, it's hard to know what would be.

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Simon Lazarus, public policy counsel for the National Senior Citizens Law Center, wrote a paper on the constitutionality of mandatory health insurance for the American Constitution Society. Alan Morrison is the Lerner family associate dean for public interest and public service at George Washington University Law School.

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