Video: First the vote, now the lawsuits

  1. Closed captioning of: First the vote, now the lawsuits

    >> for us tonight. there is more. then there are the lawsuits. more than a dozen states are going to court to challenge this health care bill claiming it's unconstitutional. our justice correspondent pete williams has more on that part of the push back.

    >> we simply can't have washington make the rules and we get stuck with the bill.

    >> reporter: 14 states and counting.

    >> it's an unprecedented expansion.

    >> you have the individual mandate health constitutional.

    >> does trample the constitution.

    >> reporter: attorneys general from all over the nation are challenging the health care reform in court.

    >> congress exceeded its powers in terms of it's requiring the individual mandate that anybody have to buy a health care policy or suffer a penalty.

    >> reporter: the new law does something the government never tried before, requiring nearly everyone to buy something sold by private companies , in this case health insurance . the constitution gives congress broad powers to regulate commerce, the business of selling, but opponents of the law say while that allows congress , for example to regulate how cars are made and sold, it doesn't mean the government could require everyone to buy one.

    >> congress can no more make you buy insurance than it can make you buy a gm car in order to help out the government who have now subsidized gm.

    >> reporter: supporters of the law say congress has broad power to regulate things that end up having an effect on the economy. they point out it adds up when people without insurance go to the emergency room for their health care .

    >> it's part of the whole scheme of things to say you can't just slack off and assume somebody is going to take care of you if you have some sort of emergency.

    >> reporter: tonight the justice department says it will vigorously defend the law and some legal disputes dismiss the lawsuits as a legal long shot but they raise a question the courts never directly answered. pete williams , nbc news at the supreme court .

    >>> while no two families are

By Pete Williams Justice correspondent
NBC News
updated 3/23/2010 7:44:30 PM ET 2010-03-23T23:44:30

The ink is still drying on the health care overhaul bill signed into law Tuesday by President Barack Obama, but attorneys general from at least 14 states have filed lawsuits to challenge the legislation.

Thirteen state attorneys general — 12 Republicans and one Democrat — signed onto one lawsuit against the U.S. departments of Health and Human Services, Treasury and Labor. The top state lawyers in Florida, South Carolina, Nebraska, Texas, Michigan, Utah, Pennsylvania, Alabama, South Dakota, Louisiana, Idaho, Washington and Colorado joined in the complaint filed immediately after the president's signing ceremony.

A separate lawsuit was also filed by Virginia's Republican attorney general Tuesday.

The issue at the heart of the lawsuit is the constitutionality of the so-called "individual mandate," which requires most Americans to have an insurance plan or else pay a federal penalty.

"The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage," the lawsuit reads.

The Department of Justice has said it is confident that the law is constitutional and would prevail in a court challenge.

Here's what's at issue: The Constitution gives Congress the authority "to regulate commerce." In other words, once someone engages in commerce, the government has the power to regulate that activity.

But opponents say that the "commerce clause" does not give the government power to require an individual to buy something — especially insurance for the health of one's own body.

"Just being alive is not interstate commerce," said Virginia Attorney General Ken Cuccinelli in a statement before the lawsuit was officially filed. Virginia's General Assembly passed a law earlier this year stating that no resident can be compelled to have health insurance.

Some legal experts agree.

Video: States sue over health mandate "Never in this nation's history has the commerce power been used to require a person who does nothing, to engage in economic activity," said Professor Randy Barnett of Georgetown University Law Center.

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Mandating that all Americans purchase health insurance is akin to "requir[ing] every American to buy a new Chevy Impala every year," to help the automobile industry, Barnett said.

Other law scholars argue that Congress does have the power to regulate activities that have a cumulative effect on the economy.

"When uninsured people get sick, they rely on their families for financial support, go to emergency room [often passing on costs to others], or purchase over-the-counter remedies," said Professor Jack Balkin of Yale Law School. "All these effects are economic."

Because Congress believes national health care reform won't succeed unless the uninsured are brought into national risk pools, it can constitutionally regulate their activities, Balkin said.

Another legal issue being debated involves the government's taxing authority.

Supporters of the insurance requirement say that it constitutes a tax, not a personal mandate, and that the Constitution gives Congress broad power to tax.

"Challenges to tax laws succeed only when taxes directly or indirectly burden the exercise of fundamental rights, and there is no fundamental right to be uninsured," says Professor Mark Hall of Wake Forest University.

But Barnett and other opponents of the individual mandate say the tax is actually a penalty for not having insurance. It's a fine, they say, not a tax.

"On this theory any fine can be called a 'tax' and Congress can regulate anything at all," Barnett said.

The Associated Press contributed to this report.

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