My Take on Idaho’s Lawsuit Against the Feds

If you watched Fox 12 News at Nine like you should be, you saw me pooh-pooh the Otter/Wasden/12 other states lawsuit against the federal government.

The lawsuit asserts that Congress has no authority under the U.S. Constitution, to compel individual citizens to participate in the economy, e.g., by forcing them to buy health insurance. Regardless of your point of view on how the courts have interpreted the Commerce Clause over the years, I felt safe in saying that the lawsuit probably won’t get anywhere.

What we have here is a two part strategy on the part of the Republican Party to scuttle this health care bill. The first part of this attack is legal - the lawsuit filed by 13 Republican Attorneys General. The second part is political. Some members of Congress are vowing to repeal this measure. That is not at all likely. If the U.S. Senate could not bottle this thing up in procedure, the members who oppose this measure certainly have no chance to repeal it outright. There is also the “reconciliation” process the bill must go through; the final form of this bill is still unknown. Congress will hash this out under a detailed set of rules over the next few weeks. I also think that it is unlikely that the bill will change significantly in this process.

Were I still in the political consulting business, I’d tell the GOP to give it up. They lost this fight and they never even put forth a compelling alternative vision. John Boehner should be replaced. Though he has Don Draper looks, he is no Newt Gingrich when it comes to vision, strategy, and tactics - and a heavy dose of vision is what the GOP needs right now.

So while Governor Otter’s concerns are real - how indeed will Idaho afford this - this lawsuit and the reconciliation process are not going to deliver the results he hopes for. What our leaders need to do now is add this issue to the other huge financial and economic challenges facing Idaho. The Boise-Nampa metro region is one of the nation’s worst performing metros - and no one in our state has announced a way forward. So after all the shiny objects - lawsuits, political posturing etc. - go away, we’re still left with that little gem of a fact.

For additional reading:
Brian Murphy over at the Statesman did a nice job covering this story this morning. If you are into reading the legal analysis, the Volokh Conspiracy has several articles by law professors talking about this in detail.