By Peter Slevin and Rosalind S. Helderman
Washington Post Staff Writer
Tuesday, March 23, 2010; A08
As President Obama celebrated his health-care victory, Republican leaders in several states vowed Monday to challenge the landmark legislation in court, arguing that the new federal rules are unconstitutional violations of state sovereignty and individual liberty.
Scholars contend the merit of such claims is unproven at best, given constitutional provisions and legal precedents that grant wide latitude to Congress to regulate national affairs. But the declarations foretell a period of court battles and statehouse resistance after months of opposition to the legislation.
Virginia Attorney General Ken Cuccinelli II (R) said the state will file a federal lawsuit Tuesday, an action that Gov. Robert F. McDonnell (R) endorsed as "meritorious."
"There's obviously some concern among our citizens and among governors and among people across the country about the breadth and scope of this health-care reform," McDonnell told reporters in Richmond.
Florida Attorney General Bill McCollum (R) promised similar action that he said would be joined by other states. He called the measure that Obama is scheduled to sign Tuesday "a tax or a penalty on just living. And that's unconstitutional."
In all, more than three dozen states are discussing ways to challenge the federal government's authority on health insurance.
Meanwhile, two members of Congress -- Sen. Jim DeMint (R-S.C.) and Rep. Michele Bachmann (R-Minn.) -- have separately said that they would introduce legislation to repeal the health-care legislation. "This bill is unconstitutional and it cannot be fixed. It must be repealed," DeMint said Sunday.
The actions are tapping into Republican resentment and the anti-government convictions of "tea party" protesters who sometimes fly the "Don't Tread on Me" flag that dates to the Revolutionary War. "Give us liberty, not ObamaCare," read one placard outside a rally last week in Ohio.
"I am a firm believer in the Founding Fathers," said Melissa Seimetz, an insurance company employee who carried the sign. "This country was built on a Constitution that's being taken away from us."
In Idaho, Gov. C.L. "Butch" Otter (R) signed into law last week a bill that requires the state's attorney general to file suit if federal health-insurance mandates become law. He said he puts "a high priority on the sovereignty of the state of Idaho."
Constitutional scholars, however, are doubtful that courts will be receptive to such arguments.
"If there's anything that's settled in American constitutional law, it's that when the federal government acts within the scope of its constitutional powers, federal law prevails over any conflicting state law," said Richard Pildes, a law professor at New York University.
Michael McConnell, a conservative legal scholar at Stanford University, agreed.
"If the federal bill is constitutional, then the state laws will be of no legal effect. If the federal bill is unconstitutional, then the state measures will be unnecessary," said McConnell, a former federal appellate judge who said he has some procedural "doubts" about how the legislation was passed.
McConnell says he thinks the state actions on sovereignty are more relevant in political terms than legal ones. He said Republican lawmakers "are doing something which has a very old history, which is using state legislatures as a means of arousing the citizenry to opposition to what they regard as oppressive legislation."
Cuccinelli said he will supplement the sovereignty argument with an assertion that Congress is exceeding its authority to regulate interstate commerce.
"You have to act consistently with your legal conclusions," he said. "I didn't get elected not to do something."
The Virginia legislature declared earlier this month that it was illegal for the federal government to require people to buy health insurance -- a key provision of the health-care bill.
McDonnell, who preceded Cuccinelli as attorney general, said: "We don't believe the federal government has the right to tell the citizens of Virginia that they must purchase a good or a service -- in this case, health insurance."
A.E. Dick Howard, a constitutional scholar at the University of Virginia, said Cuccinelli is "pushing the envelope. He's certainly challenging the conventional wisdom about congressional power under the commerce clause and the 10th Amendment limits on that power."
In Arkansas, state Rep. Dan Greenberg (R) is co-sponsoring a challenge to federal authority. He said the health-care bill is "bad constitutionally and bad on a policy level." He said the legislation should honor "the Constitution's framework of limited government."
Greenberg is not counting on the courts alone. Seeking a seat in the state Senate, he sent a postcard to voters Monday that warned of "federal health care intrusion and coercion." He asked them to support him "if you want to block Barack Obama's agenda to prohibit your health-care choices."
Staff writer Perry Bacon Jr. contributed to this report.