Thursday, March 25, 2010

Being a Lawyer is Sometimes Cool. . .

Being a lawyer is pretty cool because you immediately know more than the general public about stuff. And the recent lawsuits or threatened lawsuits over HCR allow me to speak up about the one Constitutional law topic I really, fundamentally, understand better than most: standing.

You see, in order for any federal court to allow a lawsuit to proceed in its courtroom, there has to be a case or controversy - which is defined as the loss of money, property or freedom, or the imminent threat of money, property or freedom. This can result in some interesting results. For instance, in Poe v. Ulman, the plaintiff challenged the constitutionality of Connecticut's anti-contraception statute. The Supreme Court kicked the case because no one had ever been prosecuted under the statute, and so there was no imminent threat. So, a woman and a D.A. got together, agreed that the DA would prosecute her for using contraceptives, and that's how Griswold v. Connecticut was born.

Anyway, with regard to HCR, several state AG's are suing the Feds over the provisions of HCR, including the individual mandate, wherein citizens can be penalized for not having insurance. The problem for the AG's is that states can OPT OUT OF HCR. All they have to do is set up their own health care system. You can't sue Best Buy for charging $600 for a TV that you don't have to buy.

As far as the individual mandate is concerned, the only person who's going to lose money/property is someone who's not going to buy health insurance in 2014. So, while the law is up for a legal challenge, that provision of the law can't be challenged until 2014 - because no one in their right mind, and no Court for that matter, is going to commit to not having health insurance four years from now. So, for those of you who want to end HCR, or at least the individual mandate, you're going to have to wait.


As this article indicates, the penalty doesn't go into effect until 2016, and there are no authorizing provisions to go after someone for not paying the penalty. So, for purposes of standing, the earliest that someone can bring a lawsuit is 2016, but only if some adverse action has been taken against him or her, which, because no criminal charges or liens can be used to collect the penalty means that basically, no one has standing.

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