Q & A: Update on Litigation Challenging the Affordable Care Act

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Executive Summary

Update on litigation regarding health reform

Q. Last April, you disseminated a Q&A discussing lawsuits that are challenging the constitutionality of the health reform law, the Patient Protection and Affordable Care Act (Affordable Care Act). Can you provide an update on the litigation?
A. At least 20 cases, involving federal district courts in 15 states, have been filed. This Q&A will focus on four of these cases (referred to below as ?the cases?): 
 
  • Florida ex rel. McCollum et al. v. Sebelius, No. 3:10-cv-00091 (N.D. Fla.) (?McCollum?), 
  • Virginia ex rel. Cuccinelli v. Sebelius, No. 3:10-cv-188 (E.D. Va.) (?Cuccinelli?),
  • Thomas More Law Center et al. v. Obama, No. 2:10-cv-11156 (E.D. Mich.), on appeal, No. 10-2388 (6th Cir.)(?Thomas More??), and
  • Baldwin et al. v. Sebelius, No. 3:10-cv-01033 (S.D. Cal.), on appeal, No. 10-56374 (9th Cir.), cert. denied, No. 10-369 (S.Ct. Nov. 8, 2010) (?Baldwin?).
Discussion
Overview of the cases
The cases (as do all of the cases filed to date) focus on the ?individual mandate,? which requires individuals to maintain minimum health insurance coverage or pay a penalty.2 Among other things, the plaintiffs argue that the mandate violates Congress?s authority to enact legislation under the commerce and taxing clauses of the Constitution.
 
As the following overview shows, the cases are moving rapidly through the courts. As reported by the New York Times, ??That this stage in the legal assault on the health law has arrived so quickly is striking, given that many prominent law professors dismissed the challenges as baseless only seven months ago?.??3

McCollum: Minutes after President Obama signed the Affordable Care Act on March 23, 2010, F lorida Attorney G eneral B ill McCollum, joined by attorneys general from 12 other states, challenged the constitutionality of the law. In May, an amended complaint added plaintiffs, and the case now includes attorneys general and governors from 20 states: Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho, S outh Dakota, Indiana, North Dakota, Mississippi, Arizona, Nevada, Georgia, and Alaska. The National Federation of Independent Businesses and two individuals also joined. In addition to making the Commerce Clause arguments, McCollum argues that, by expanding Medicaid to include individuals with incomes at or below 133% of the federal poverty level, the Affordable Care Act coerces the states and commandeers their Medicaid programs in violation of Article I and the Ninth and Tenth Amendments. 

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