RENEE MONTAGNE, host:
Once President Obama signs that health care overhaul bill today, it becomes law. And you can look for opponents to move quickly onto the next front: attacking the bill as unconstitutional. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: Health care opponents have been gearing up for the legal fight for months. Some of the challenges that will be filed in court are widely viewed as frivolous, while others are not.
The first will likely come from states that have enacted laws to exempt themselves from the bill. The Goldwater Institute's Clint Bolick is among those who've spearheaded the drive in the states to opt out of various provisions of the law, including the mandate to buy health insurance.
Mr. CLINT BOLICK (Director, Goldwater Institute): Here you have a right that's been recognized under the Constitution namely the right to direct one's own medical affairs without excessive government regulation. You've got an area that is traditionally a matter of state concern, and the federal government is trying to impose on it.
TOTENBERG: Virginia and Idaho have already enacted opt-out laws, while similar laws are pending in 34 other states.
Virginia Attorney General Ken Cuccinelli.
Mr. KEN CUCCINELLI (Attorney General, Virginia): The General Assembly of Virginia this year passed a statute that protects Virginia citizens from being mandated to buy health insurance.
Mr. CHARLES FRIED (Former Solicitor General): The notion that a state can just choose to opt out is preposterous.
TOTENBERG: Former Reagan administration Solicitor General Charles Fried.
Mr. FRIED: One is left speechless by the absurdity of it.
TOTENBERG: Fried knows that similar attempts at so-called nullification led to the Civil War. And indeed there are precious few legal scholars of the right, left or center who believe that a state can simply opt out of an otherwise constitutional law.
Conservative scholar and former appeals court judge Michael McConnell sees these opt-out state laws as political symbols, not legal arguments.
Mr. MICHAEL MCCONNELL (Former Appeals Court Judge): If the mandate is constitutional, then the state statutes are pre-empted. If it's not constitutional, they're unnecessary.
TOTENBERG: That sentiment is echoed by Washington and Lee Law Professor Tim Jost.
Professor TIM JOST (Washington and Lee University): It's political theater. It's the states standing up and saying we dont like what you're doing. But these are not laws that are going to have legal effect.
TOTENBERG: More serious, however, are the direct legal challenges to the mandate.
Again, Tim Jost.
Prof. JOST: The issue that comes up with the individual mandate is that it's kind of hard to think of a situation before where Congress has required people to purchase a product in the market.
TOTENBERG: On the other hand, federal mandates are nothing new. Charles Fried defended many of them when he served as the Reagan administration's advocate in the U.S. Supreme Court.
Mr. FRIED: We have tons of laws that impose obligations on people and some people would rather not participate, starting with the Internal Revenue Code.
TOTENBERG: Or the draft in wartime, or Social Security, or environmental restrictions on the states. None of these, of course, is exactly on point. But without a precedent that is exactly on point, there's room for opponents of the health care reform to maneuver in court.
Lawyer David Rivkin represents Florida and 11 other states that plan to bring legal challenges to provisions of the law.
Mr. DAVID RIVKIN (Attorney): Aside from the individual insurance purchase mandate, the statute requires an unprecedented degree of cooptation of state officials and state resources by the federal government, where states are supposed to do is set up insurance exchanges. They're supposed to regulate insurance companies. They're supposed to do X, Y and Z.
TOTENBERG: The Obama administration is taking nothing for granted. It's already setting up a cadre of lawyers to defend the health overhaul. The last word will come from the U.S. Supreme Court a court that has moved dramatically to the right in the last few years.
Nina Totenberg, NPR News, Washington.
MONTAGNE: And you can learn how the health care bill might affect you at our Web site, NPR.org.
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