Could the PPACA be unconstitutional?

While various provisions of the Pension Protection and Affordable Care Act (PPACA) are becoming effective, attempts are underway to repeal or nullify them. In at least 39 states, lawmakers have filed legislation designed to outlaw the PPACA provision that anyone who does not obtain health insurance by a specified date must pay a penalty. It is doubtful that any such state law could override federal law, so it would seem that these measures are simply political posturing.

However, the American Legislative Exchange Council’s (ALEC’s) Freedom of Choice in Health Care Act, modeled on Arizona Proposition 101, has already passed the legislatures of Idaho, Arizona, and Virginia. It is designed to make unconstitutional any attempt to require the purchase of health insurance—or any attempt to forbid anyone from purchasing health care services not in line with the federal PPACA’s requirements.

On March 23, 2010, Virginia became one of a number of states that have now filed suit challenging the constitutionality of the PPACA’s requirement that individuals obtain or maintain health insurance or pay a penalty (Commonwealth of Virginia, Ex Rel. Kenneth T. Cuccinelli, II v. Sebelius, No. 3:2010cv00188). In the lawsuit, Virginia claims that the requirements violate the Commerce Clause.

HHS Secretary Kathleen Sebelius has filed a response, arguing that Virginia does not have standing to sue since the state of Virginia itself has not sustained injury from the law, and, since that particular PPACA provision does not take effect until 2014 anyway, the suit is not timely.

An amicus brief was filed by the American Center for Law and Justice (ACLJ), on behalf of various members of Congress in support of the suit, arguing that, not only would the Commerce Clause be violated, but forcing Americans to purchase health insurance is unprecedented. Physician Hospitals of America has also filed a motion for leave to file an amicus brief.

Argument on the Adminstration’s motion to dismiss is set for 10:00 a.m., July 1, at the U.S. District Court for the Eastern District of Virginia.

For a comprehensive analysis of the Patient Protection and Affordable Care Act, and additional information on health reform and other developments in employee benefits, just click here.