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Government, Politics & Issues

Analysis: Will Kinder's lawsuit challenging health-care law be stopped before it begins?

This article first appeared in the St. Louis Beacon, July 9, 2010 - Lt. Gov. Peter Kinder faces a tall legal hurdle before he can persuade a court even to hear his legal challenge to the federal health-care law. He will have trouble showing that he had the legal standing even to get inside the courthouse door, legal experts say.

David Roland, an attorney at the Show-Me Institute and himself a critic of the law, doubts that Kinder will be able to clear this initial legal hurdle on most of the eight legal claims he made this week in a suit filed in federal court in southeast Missouri.

"Before a court will consider and rule on a legal issue, the plaintiff must establish that there is a current case or controversy between themselves and the defendant," Roland wrote in an email.

"This usually means that the government must have taken some act that has caused a harm or detriment to the person filing the lawsuit," continued Roland. "It is not usually sufficient simply for a law to be on the books -- courts usually (although not always) require some implementation of the law before they will address its validity. Also, it is important to remember that plaintiffs cannot generally bring claims on behalf of others."

The requirement that a lawsuit present a case or controversy and that those bringing it be harmed is an important restraint on judicial power. It keeps the courts from exceeding their authority and rendering opinions on hypothetical rather than real situations.

Several legal experts have pointed out that the portion of Kinder's lawsuit that challenges the individual health mandate in the new law is probably not yet ripe for consideration by the courts because it will not take effect until 2014.

Roland is one of a minority of legal experts who believes that the Supreme Court eventually may decide that Congress exceeded its powers in enacting the individual health-care mandate. A majority view among legal experts is that the mandate is within Congress' power.

Despite his sympathy with Kinder's legal argument about the mandate, Roland agrees that the mandate cannot be challenged until it is implemented.

Roland also noted that a large part of the suit was based upon "assumptions" about how the law will be enforced. He added, "It is not clear that the lawsuit's assumptions are correct"; and even if they are, Kinder and the three citizens who joined in the suit face standing issues. "While I think the legal arguments in these counts are well-founded, the claims are premature and will continue to be so until the mandate is actually implemented," he wrote.

Three other counts of the suit -- counts one, three and four -- assert rights on behalf of the state of Missouri, something a citizen probably cannot do. "I cannot think of any examples" of private citizens being allowed to assert the rights of their states, Roland wrote, "and I do think it unlikely. Thus, I don't think a court is likely to agree to consider Counts One, Three, and Four."

Ronald Levin, a law professor at Washington University, pointed out in an email that Kinder has a weak argument that his role as an advocate of the elderly gives him standing to sue. "In most states, only the attorney general can represent the state in litigation," he wrote. "Even governors have difficulty going to court over the attorney general's objection, although they occasionally succeed. But it would be surprising to discover that the Missouri lieutenant governor can do so in his capacity as 'senior citizen advocate.' This is basically an ombudsman role, and the statute does not appear to authorize litigating for anyone in courts."

In general, Kinder argues that the federal government cannot commandeer state government to implement a federal program. He bases that argument on a Supreme Court opinion throwing out a portion of the Brady gun control act that required state officials to enforce the law. But it is not clear that the federal health care law would similarly commandeer state officials to enforce its provisions.

Count two of the complaint argues that the law interferes with the way Missouri compensates its government officials because it sets a floor of coverage for state employees. This may be one area where Kinder, a state official, has standing to sue.

"The substance of the claim, however, is dubious," Roland wrote. "It seems highly unlikely that the federal government is not permitted to impose certain limitations on how Missouri is permitted to compensate its employees. For example, would the state argue that it is not required to pay minimum wage or to comply with anti-discrimination laws? The principles of state sovereignty expressed in Count Two are, I believe, well made -- but they do not necessarily demand a conclusion that the targeted provision of the federal health care law is unconstitutional."

The one portion of the complaint that may have some validity, Roland said, is Count Seven which maintains that Missouri citizens on Medicare are not treated equally to those in Florida who are allowed to maintain their Medicare Advantage programs as part of the compromise that led to the law's passage. "That's a powerful claim, assuming that the law is implemented the way that the lawsuit envisions," Roland wrote. "Those aspects of the statute go into force on Jan. 1, 2011, so it's possible that the court will be willing to address them."

Levin is not as impressed by this part of the suit. Kinder's suit "seems to be referring to provisions that were inserted by Sen. Bill Nelson, under which Florida citizens would have been expressly grandfathered into special benefits under the Medicare Advantage program," wrote Levin. "Those provisions in the Senate bill (and similar ones by other senators) were indeed strongly criticized as unfair. But the argument would be stronger if those provisions had not been eliminated in the reconciliation bill. The replacement language is neutral on its face. If it turns out to benefit citizens in some states more than in other states, that situation is commonplace in regulatory legislation and generally held to be constitutional" as a rational legislative decision.

The final count in the complaint challenges the panels that critics say could deny people needed care -- the panels that were referred to as "death panels" in the debate about the bill. Ironically, Kinder relies on the court's abortion decisions -- decisions he opposes -- to make the argument that people have a constitutional right to control their bodies.

Roland pointed out that the panels have not been constituted and that any challenge to them would have to await someone being harmed by a panel's decision.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. 

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