Posted on 23 Mar 2010
As President Barack Obama celebrated his health-care victory, Republican leaders in several states vowed Monday to challenge the landmark legislation in court, arguing that the new federal rules are unconstitutional violations of state sovereignty and individual liberty.
Scholars contend the merit of such claims is unproven at best, given constitutional provisions and legal precedents that grant wide latitude to Congress to regulate national affairs. But the declarations foretell a period of court battles and statehouse resistance after months of opposition to the legislation.
Virginia Attorney General Ken Cuccinelli II (R) said the state will file a federal lawsuit Tuesday, an action that Gov. Robert F. McDonnell (R) endorsed as "meritorious."
"There's obviously some concern among our citizens and among governors and among people across the country about the breadth and scope of this health-care reform," McDonnell told reporters in Richmond.
Florida Attorney General Bill McCollum (R) promised similar action that he said would be joined by other states. He called the measure that Obama is scheduled to sign Tuesday "a tax or a penalty on just living. And that's unconstitutional."
In all, more than three dozen states are discussing ways to challenge the federal government's authority on health insurance.
Meanwhile, two members of Congress -- Sen. Jim DeMint (R-SC) and Rep. Michele Bachmann (R-MN) -- have separately said that they would introduce legislation to repeal the health-care legislation. "This bill is unconstitutional and it cannot be fixed. It must be repealed," DeMint said Sunday.
The actions are tapping into Republican resentment and the anti-government convictions of "tea party" protesters who sometimes fly the "Don't Tread on Me" flag that dates to the Revolutionary War. "Give us liberty, not ObamaCare," read one placard outside a rally last week in Ohio.
"I am a firm believer in the Founding Fathers," said Melissa Seimetz, an insurance company employee who carried the sign. "This country was built on a Constitution that's being taken away from us."
In Idaho, Gov. C.L. "Butch" Otter (R) signed into law last week a bill that requires the state's attorney general to file suit if federal health-insurance mandates become law. He said he puts "a high priority on the sovereignty of the state of Idaho."
Constitutional scholars, however, are doubtful that courts will be receptive to such arguments.
"If there's anything that's settled in American constitutional law, it's that when the federal government acts within the scope of its constitutional powers, federal law prevails over any conflicting state law," said Richard Pildes, a law professor at New York University.