This is the first in my projected series of posts on issues likely to arise in the various lawsuits challenging the constitutionality of the Obama health care bill. To briefly recap, the lawsuits in question are one filed by 13 state governments challenging the individual mandate and various mandates and grant conditions imposed by the states, one independent suit filed by the state of Virginia, and a little-noticed but potentially important case filed by the Thomas More Law Center on behalf of four individual citizens who object to the individual mandate and refuse to obey it.
The really important issues raised by these suits have to do with federalism, the Commerce Clause, and Congress’ power to tax. However, administration lawyers will probably try to get the lawsuits dismissed on procedural grounds of standing and ripeness.
As discussed below, I think eventually a case will arise that meets even the most rigid standing and ripeness standards. At the very least, it should be possible to bring such a suit once the individual mandate takes effect in 2014. By that time, however, public anger against the health care bill might have diminished, at least some parts of the bill will have been implemented, and it will be much harder to uproot. Thus, it is in the Obama administration’s interest to persuade the courts to postpone consideration of these issues for as long as it can.
The Supreme Court has repeatedly ruled that citizens cannot file federal lawsuits challenging a statute unless they have 1) suffered some sort of past or imminent material injury, 2) the injury was caused by the law, and 3) it can be redressed by a judicial decision. I think it’s fairly clear that the individual citizens represented by the TMLC fit [...]