Wisconsin governor-elect Scott Walker has said he would let AG Van Hollen go ahead with the health care challenge.The current governor should have let Van Hollen go ahead months ago but at this juncture, Van Hollen's joining one or more of the suits is largely shambolic, as much of the work has already been done.
The most important of the challenges, State of Florida v. DHHS, is shortly headed for the 11th Circuit Court of Appeals in Atlanta.
It's important because the district court resoundingly rejected the federal government's ex post facto rationalization that the so-called individual insurance mandate is authorized by Congress's power to tax. It seems to me not unfair to speculate that the feds devised the argument because there is such scant legal support for the proposition that the Interstate Commerce Clause — which empowers Congress to "regulate Commerce ... among the several States" — authorizes Congress to compel by coercive penalty the bringing into existence of the very commerce Congress might then regulate.
That tactic appears precluded by the plain text of the Constitution.
If the district court's ruling invalidating the tax power argument survives its appeal, then the individual mandate is in serious trouble. And even if the 11th Circuit does reinstate the validity of the federal government's power-to-tax argument, the Supreme Court as currently comprised — where this case is inevitably destined — will not be sympathetic to either the taxing or commerce power justifications.
Another significant challenge is contained in Virginia v. Sebelius, whose litigation is similarly well underway. The plaintiff's principal lawyer, Virginia AG Ken Cuccinelli, was recently observed dictating to Fox News's Greta Van Susteren what sounded suspiciously like a verbatim rehearsal of a blog post that appeared at this location nearly one year ago, so I have a hard time disagreeing with him.
So far the only court that has provided a positive result for defenders of the individual insurance mandate is one in Michigan, but that decision relied on an untenably selective reading of Gonzales v. Raich, the Supreme Court's most recent set of pronouncements on the (yes, "evolving") meaning of the Interstate Commerce Clause.
While it will be argued that Raich defines the Commerce Clause so broadly such that it leads in the direction required to support the validity of the individual mandate, at least in that case there was commerce already in existence — marijuana plants growing in a Californian's apartment, which are presumed to have value in commerce — over which the federal regulatory powers extended, no matter how attenuated was the regulated object from the regulation.
So I wouldn't expect the Michigan decision to stand.
And if Scalia gets a crack at its interpretation of Raich — whose majority opinion Scalia did not join but rather wrote separately to agree with its result according to what he claimed was his "more nuanced" understanding — I would expect him to react violently.
And then there is the rejuvenatedly notorious Clarence Thomas, who will take the opportunity to reverse nearly every Commerce Clause decision since and including 1819's McCullough v. Maryland.*
Whatever the ultimate disposition in the ongoing set of cases, Van Hollen's ceremonial participation will have little effect either way.
Attorney General Van Hollen's energies will be better spent joining Obama and his press secretary in defending Congress's enumerated power to order the president to declare a "national day of prayer" annually in America because clearly, that legislative authorization is discoverable throughout Article I, Section 8 of the Constitution.
Besides, it's an actual State of Wisconsin case and we're still waiting for the 7th Circuit Court of Appeals to schedule the oral arguments.
* Justice Thomas wouldn't care much for this Beloit high schooler's t-shirt either, and moreover would likely condone the local authorities' taking the young man out back and having him birched.
See also: Liberals in denial.