Debate: Health Care Suits Waste of Time and Money

(April 5) -- "My copy of the Constitution doesn't have an individual right not to be insured. If you don't sign up for insurance, then you're going to be some kind of drag on the system."

Those aren't my words. They are the words of Charles Fried, former U.S. solicitor general under President Ronald Reagan and now a Harvard constitutional law professor. They are also the sentiments of most constitutional law experts who have examined the question of the constitutionality of the new health care reform legislation.

As the chief legal officer for the Commonwealth of Kentucky, it is my duty to look at the merits of any case and provide sound legal advice and representation. After careful review and consideration, I have rejected a request from Republicans in the Kentucky House and Senate to join a legal constitutional challenge of the recently passed federal health care reform law, which will provide access to affordable health care for more than 650,000 Kentuckians who are currently without health insurance.

While the lawsuits filed by other state attorneys general to block this new law may make for good Sarah Palin-style "tea party" politics, they are based on questionable legal principles. At a time when the Commonwealth of Kentucky is cutting its budget for education and social services, I will not waste taxpayer resources on a political stunt.

Unfortunately, this rush to the courthouse is nothing new. Historically, opponents of reform have turned to the courts when major legislation with which they disagree is enacted by the Congress. Challenges were brought to the Social Security Act, the Civil Rights Act and the Voting Rights Act. All of those laws were upheld.

Advocates of these meritless lawsuits advance three primary claims: 1) the individual requirement is unconstitutional; 2) the requirement upon the states is "commandeering" in violation of the 10th Amendment; and 3) it results in an unfunded mandate through Medicaid to the states. These rhetorical arguments are without merit.

First, decades of constitutional jurisprudence regarding the Commerce Clause uphold Congress' authority to effectively regulate health care and the health insurance systems in this country. The U.S. Supreme Court upheld that authority as recently as 2005.

In fact, the arguments being espoused by some Republicans against the health care bill would jeopardize the entire Social Security system, including the monthly benefit checks that nearly 845,000 senior citizens and disabled people in Kentucky depend on for their basic needs. Congress clearly has the explicit constitutional authority to enact measures for the "general welfare."

Second, the "commandeering" claim is pure rhetoric. States are not forced to act; they choose whether or not to set up these health care insurance "exchanges." If states decide not to form exchanges, the federal Health and Human Services department will set up exchanges for them. Thus, there is no merit to this fearful commandeering claim.

Finally, the claim that this new law will cost Kentucky and other states millions of dollars in unfunded Medicaid mandates is rhetoric based on fear, not reality. Under the federal bill, Medicaid continues to be a voluntary, not mandatory, program, with the federal government matching a percentage of contributions made by the state. To the degree that the federal matching terms are more generous, the bill will benefit Kentucky, and other states, when the law is phased in after 2014.

Based on these facts and the law, during the worst economic crisis in a generation, I will not misuse the resources or power of my office to pursue litigation that is without merit. While this may make for good "tea party" politics, it makes for a lousy lawsuit.

Jack Conway is the attorney general for the state of Kentucky.