Initially, let me say what this diary is not about. It is not about whether the mandate is constitutional. wmtriallawyer published an excellent diary on the topic last December. In summary, let me just say that the argument that the mandate violates the Constitution is as watertight as a chicken wire submarine.
No, what this diary is about is the objectively crazy lawsuits being brought by wingnut Attorneys General in a slew of red states, including my beloved Commonwealth of Virginia - and I want to make a point about those lawsuits that (I think) the average layperson is not going to intuitively understand.
So since my Virginia is apparently leading the charge of the legal Light Brigade, let me use the lawsuit being prepared by our very own AG, Ken "Cooch" Cuccinelli as the template for this nonsensery. First, a neutral source, Reuters:
NEW YORK, March 22 (Reuters) - Virginia's attorney general said he plans to sue the federal government over the healthcare reform legislation, saying Congress lacks authority to force people to buy health insurance.
Attorney General Kenneth Cuccinelli, a Republican, said on Monday that Congress lacks authority under its constitutional power to regulate interstate commerce to force people to buy insurance. He said the bill also conflicts with a state law that says Virginians cannot be required to buy insurance.
"If a person decides not to buy health insurance, that person by definition is not engaging in commerce," Cuccinelli said in recorded comments. "If you are not engaging in commerce, how can the federal government regulate you?"
So in the world according to Cooch, a person who "decides" not to buy health insurance (apparently good ole' Cooch hasn't considered those who couldn't buy health insurance at any price in his beloved free market regime) is not engaging in commerce and therefore the Gubmint has no business regulating this non-behavior. As I said above, wmtriallawyer destroyed this ridiculous argument in his December diary, "Debate the Mandate, But Don't Call It Unconstitutional". The chances of any of these lawsuits succeding, i.e., that any court will agree that the individual mandate int he PPACA (the Senate bill that is becoming law) is unconstitutional, is nil. Nevertheless, there seems to be, even among the brilliant and attractive people who are the Kossacks, some misunderstandings of the potential reach and effect of the import of the lawsuits.
The most important thing to note at this point, aside from the .001% chance of their success as laid out by wmtriallawyer, is that the AGs' lawsuits are entirely and singularly focused on the constitutionality of the individual mandate. So this is my point: Even if completely successful, the state lawsuits challenging the mandate contained in PPACA will not "undo" its reforms. It is perhaps a very common misunderstanding of the laypublic that the federal courts, especially the SCOTUS, are free agents when it comes to constitutional jurisprudence. However the courts are constrained by both precedent (dealt with in wmtriallawyer's diary) and by the Canons of Judicial Review, rules that the courts developed over centuries of jurisprudence to govern and constrain the consideration of questions of constitutionality. Among those Canons is the following:
Where one part of a law must be declared unconstitutional, a court should attempt, if possible, to sever and save the remaining parts. "The standard for determining the severability of an unconstitutional provision is well established: Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987). However, "severance is improper if the unconstitutional provision is "an integral part of the statutory enactment viewed in its entirety." Id.
So what does this mean? At best, at their very best outcome, the lawsuits being filed by the Attorneys General attacking the constitutionality of the individual mandate will only invalidate the individual mandate.
A layperson might be led to believe, however, that the caveats attached to this Canon mean that all of PPACA could be rendered unconstitutional by virtue of the challenge to the mandate. That possibility, however, is also so remote as to approach nil. It is not at all "evident" that Congress would absolutely not have passed the PPACA without the mandate. It was added, after all, only as part of the usual horsetrading involved in drafting legislation. Moreover, PPACA is hardly a single issue piece of legislation: it has broad effect over many disparate aspects of health care and health insurance so that no single provision could possibly be said (with a straight face) to be central to the entire legislative scheme. Thus, while the mandate is undoubtedly an important feature of the law, it is not so critical that the very purpose of the law would be undermined by severing it out as unconstitutional. For example, the law regulates the behavior of individuals by mandating that they buy health insurance, but it also regulates much more extensively the behavior of health insurers by prohibiting denials based on pre-existing conditions, by prohibiting lifetime caps on benefits, by allowing children to remain insured under their parents' coverage until the age of twenty-six, to name a few. The one discrete set of regulations (health insurers) is completely independent of the other set of regulations (individuals). In the end, the mandate is but one ferature of a complex and comprehensive bill.
The best that the wingnut Attorneys General can hope for, therefore, is a vanishingly remote chance of prevailing at all, and then a vanishingly remote chance of that having any effect other than to invalidate the individual mandate. The money that these states are preparing to spend on this effort, and the money that they will force the federal government to spend to defend PPACA, would be better used make up budget shortfalls, or to stimulate job growth, or even to burn to heat the state capitals for a fraction of a minute.
Update: as to whether the ultimate purpose of the lawsuits is to "set back" the reforms, an additional two points: First, acts of Congress are presumed to be constitutional (that's the very first of the Canons of Judicial Review) so any attempt to enjoin enforcement of PPACA while the cases are litigated will have to overcome an extremely high burden - yet again a de minimis chance of that happening; and Second, any state laws attempting to undermine PPACA (such as the laughable one that Virginia passed) will run square up against the Supremacy Clause of the Constitution - i.e., more wingnut fail.