Law professor: Health reform lawsuits in Va. other states ‘a loser’


Considering it unlikely to appear on a future docket of the U.S. Supreme Court, a constitutional law expert says a federal lawsuit by Virginia’s attorney general challenging health reform mandates is “a loser.”

Ken Cuccinelli, a Republican, filed Commonwealth v. Kathleen Sebelius in the U.S. District Court for the Eastern District of Virginia in March, challenging the constitutionality of new federal health reform guidelines, specifically a mandate requiring individuals to secure private health insurance. In the suit, Cuccinelli argues that the new law violates the Commerce Clause of the U.S. Constitution, with the federal government forcing the purchase of health coverage under the federal government’s power to regulate interstate commerce.

Frederick Schauer

A similar argument is the basis of a joint suit by attorneys general in more than a dozen states as well.

Frederick Schauer, the David and Mary Harrison distinguished professor of law at the University of Virginia, said the past two decades of decisions by the Supreme Court have changed his mind on the likelihood of victory by Cuccinelli, but not by much.

“Twenty years ago, I would have said that the Commerce Clause challenge was either preposterous or frivolous,” he told “Now, I think it is a very, very, very long shot.”

Schauer pointed to three recent decisions by the U.S. Supreme Court addressing the Commerce Clause that inform his opinion: United States v. Lopez, United States v. Morrison and Gonzales v. Raich.

In Gonzalez v Raich, Schauer said, the nation’s highest court upheld the use of the commerce power, but in Lopez and Morrison it cut back on its attitude of the two decades prior, “that Congress had the power to pretty much do whatever they wanted.”

In Lopez and Morrison, the Supreme Court ruled that Congress’ power was limited, he said, especially noting the importance of there being a substantial impact on interstate economic effects to justify use of the commerce power.

“To say this [health reform] bill and the entire health care industry doesn’t have significant interstate economic effect is a much, much, much more tenuous argument,” Schauer said. “So with that, I would predict, with pretty strong odds, that the case is a loser.”

He added, “What is happening is a political statement about federalism.”

Schauer suggested the likelihood of the case reaching the Supreme Court will only increase if both a lower court and an appeals court rule the federal health reform law unconstitutional.

He added that the $1.1 billion Cuccinelli claims the state will save through the suit “assumes the likelihood” it wins.

// ‘Commerce’ cases

Three recent cases by the U.S. Supreme Court highlight the body’s stance on the Constitution’s Commerce Clause, the matter at the heart of lawsuits challenging federal health reform mandates.
•  United States v. Lopez
The court recognized Congress’ broad authority under the Commerce Clause, but it does not extend to regulating the carrying of handguns under the Gun-Free School Zones Act of 1990 as it is not part of a larger regulation of economic activity.
•  United States v. Morrison
The Supreme Court found that Congress lacked authority, including under the Commerce Clause, to enact part of the Violence Against Women Act of 1994 as it did not “substantially affect interstate commerce.”
•  Gonzales v. Raich (aka Ashcroft v. Raich)
The high court ruled that under the Commerce Clause, Congress can ban the use of cannabis even in states, like California, that approve its use for medicinal purposes as production of the commodity for consumption can have “a substantial effect” on supply and demand in the national market for that same commodity.

This story originally appeared in the May 2010 print edition of Insurance & Financial Advisor.

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