The Trib has a copy of the lawsuit that AG Greg Abbott and a dozen of his buddies have filed against the health care reform bill that was signed into law today. You may be wondering, as I have been, if they’re just whistling past the graveyard or if there’s something to their argument about the individual mandate. There’s a lot of legal commentary out there already that suggests this effort isn’t going to go anywhere, but I think Kevin Drum sums it all up pretty well.
[I]f the Supreme Court decided to overturn decades of precedent and strike down the mandate even though Kevin Drum says they shouldn’t (hard to imagine, I know), the insurance industry will go ballistic. If they’re required to cover all comers, even those with expensive pre-existing conditions, then they have to have a mandate in order to get all the healthy people into the insurance pool too. So they would argue very persuasively that unless Congress figures out a fix, they’ll drive private insurers out of business in short order. And that, in turn, will almost certainly be enough incentive for both Democrats and Republicans to find a way to enforce a mandate by other means. If necessary, there are ways to rewrite the rules so that people aren’t literally required to get insurance, but are incentivized so strongly that nearly everyone will do it. As an example, Congress might pass a law making state Medicaid funding dependent on states passing laws requiring residents to buy insurance. Dependent funding is something Congress does routinely, and states don’t have any constitutional issues when it comes to requiring residents to buy insurance. They all do it with auto insurance and Massachusetts does it with health insurance.
And if they do manage to strike down the individual mandate, there are other ways to achieve the same end. All that is assuming they can even get a court date before that provision comes online in 2014. (Remember how SCOTUS upheld the Indiana voter ID law because they said no one had actually been harmed by the law since it hadn’t been allowed to go into effect yet? It’s like that.) And if they do ultimately succeed at winning in court after losing at the ballot box and in the legislature, as Ezra Klein says, “No conservative who supports these legal challenges can complain about activist judges ever again.”
Closer to home, this letter from a number of Democratic state lawmakers to AG Abbott asks some pretty good questions as well:
While you are free to hold whatever personal view you care to hold, given that Texas state agencies are being asked to cut their budgets by 5 percent, and the Legislature has neither appropriated your office the funds for nor instructed you to pursue such litigation, this action has all the markings of a frivolous lawsuit.
We would also question why you would file a lawsuit that, if successful, would ostensibly result in the reimplementation of the worst practices of the insurance industry. It is disconcerting that you would expend state resources in an attempt to repeal small business tax credits, repeal tax subsidies to middle income families, reinstate the Medicare “donut hole,” allow insurance companies to indiscriminately drop people from their coverage, and prevent Texas from receiving any of the myriad pro-consumer reforms in the legislation.
To our knowledge, the Legislature has not instructed you to institute this suit nor has it specifically appropriated money for the proposed litigation. Please explain what constitutional or statutory provisions authorize you to bring this type of lawsuit. Also, please explain how you have obtained the consent of your client, the State of Texas, under the applicable provisions of the Texas Disciplinary Rules of Professional Conduct. Finally, please explain how you intend to pay for the litigation.
Finally, please provide our offices with copies of any legal briefs or memoranda prepared by your office that address in any way the questions in the preceding paragraph. To the extent that you seek to withhold any information, please note that this request for information is made for legislative purposes under Section 552.108 of the Government Code.
In other words, it’s all basically politics on Abbott’s part. As Barbara Radnofsky notes, Abbott and RPT Chair Cathie Adams are using this lawsuit as a fundraising opportunity. I know, I’m as shocked as you are. Better milk all you can out of the repeal thing while you still can, Greg.