Is health care reform constitutional?

Well, the Richmond Tea Party doesn’t think so and Attorney General Cuccinelli agrees. Attorney General Cuccinelli released a statement yesterday stating he would file suit in federal court challenging the constitutionality of the recently partisan passed Health Control bill. Richmond Tea Party supports these efforts wholeheartedly. We are thrilled that we had the foresight as a Tea Party movement to pass the Health Care Freedom Act here in Virginia. We are leading the way for 34+ states who are looking to reject this abomination.

But what are the next steps after this lawsuit? Richmond Tea Party is already thinking ahead. We have had conversations with Professor Randy Barnett, a Constitutional law professor at Georgetown University, on other ideas for the next General Assembly session. He has had some great editorials in the Wall Street Journal and Forbes magazine. Most recently Professor Barnett had an editorial in the Washington Post.

Of course, there is one additional way for states to win a fight about the constitutionality of health-care legislation: Make it unconstitutional. Article V of the Constitution gives state legislatures the power to require Congress to convene a convention to propose an amendment to the Constitution. If two-thirds of state legislatures demand an amendment barring the federal regulation of health insurance or an individual mandate, Congress would be constitutionally bound to hold a convention. Something like this happened in 1933 when Congress proposed and two-thirds of the states ratified the 21st Amendment, removing from the Constitution the federal power to prohibit the manufacture, sale and transportation of alcohol. But the very threat of an amendment convention would probably induce Congress to repeal the bill.

Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument? Although the first three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won’t be five votes to thwart the popular will to enact comprehensive health insurance reform.

But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won’t go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.

We are actively looking for ways to hold Congress accountable and stop their tyrannical rule now and in the future. We offer our entire support to Cuccinelli and find comfort that we have statesman in Virginia who is willing to stop this insanity. But we have been making plans for the last month on what additional measures can be taken legislatively and through Constitutional amendments to prevent Congress from ever doing this again. We will continue to work on these ideas with the other Virginia Tea Parties throughout the summer and will keep you informed. Perhaps term limits!