Reaction to these constitutional challenges from legal experts both in and out of government has been cool, bordering on dismissive. Among constitutional scholars, the puzzle is not how the federal government can defend the new law, but why anyone thinks a constitutional challenge is even worth making. Even constitutional experts ideologically inclined against broad federal government power advance arguments against the law with some caution, noting that, as law professor Randy Barnett put it, "the smart money says there won’t be five votes" for the states among the justices. They even linger on constitutional amendment as a possible recourse, knowing full well that our Constitution makes amending the Constitution almost impossible.
Yet it is a mistake to write off these lawsuits as impotent or insignificant gestures. Whatever their legal weaknesses, they contain a lesson or two for progressives and the Obama administration about the nature of constitutional change and its relationship to American politics.
Even a cursory glance at the Florida and Virginia complaints reveals that neither lawsuit really turns on a plausible reading of the law today. Florida’s raises three constitutional challenges: That the "individual mandate" is outside of Congress’s enumerated powers; that the law as a whole infringes on state sovereignty protected by the Tenth Amendment to the Constitution; and that the tax penalty imposed on people who get no insurance is a "direct tax" that Article I of the Constitution says must be apportioned by population. Virginia’s complaint includes only the first of these.
Under existing law, not one has merit. First, as to the challenge to the individual insurance mandate, the Supreme Court as recently as 2006 confirmed that the federal government has broad power to impose comprehensive regulation for national markets and even to reach individual decisions to opt out of a national market. In the healthcare context, these opt-out decisions clearly have an impact of the rest of the national market. So the case for an individual federal mandate is especially strong. Second, courts have consistently held that a federal regulatory program doesn’t infringe on a state’s sovereignty if the state can opt out. As Florida concedes, it can drop out of Medicaid as expanded by this week’s law–it’s just that Medicaid is too gosh darn popular. The state’s claim to be coerced by its own voters is likely to fall on stony ground in the courts. Third, if the "direct tax" argument had merit–and it doesn’t for technical reasons–malapportioned tax rules such as the mortgage interest exemption will get the heave-ho. With collateral damage like that it’s hard to see a federal court taking that path.