The U.S. Supreme Court has decided to review the case brought by 26 states challenging the constitutionality of the Patient Protection and Affordable Care Act (PPACA). Some legal commentators believe that this is the most significant case to come before the Supreme Court since Roe v. Wade. Underscoring the importance of the constit Tutional questions posed by the case, the high court ordered an unprecedented amount of time for oral arguments: five and half hours. Most parties are given an hour total to present oral arguments to the Supreme Court. This decision must have floored Nevada’s attorney general. In Catherine Cortez-Masto’s professional judgment the states’ litigation lacks any credible legal basis.
In March 2010 then-Governor Jim Gibbons requested Attorney General Cortez-Masto to represent Nevada in the lawsuit. Fourteen other states at the time had sued the federal government in federal district court contending that Congress had exceeded its constitutional authority by, among other things, mandating that U.S. citizens purchase a heavily regulated health insurance policy.
The attorney general’s letter to the governor refusing his request stated: “The [PPACA] . . . appears to be supported by Congress’ authority under the Commerce and Spending Clauses.” Never mind that the Commerce Clause had never before been employed in this way before. The attorney general pronounced, “In my professional judgment, joining the litigation filed by 14 other states, as you have suggested, is not warranted by existing law at this time.” Cortez-Masto concluded: “I will continue to monitor the litigation . . . and determine whether a credible legal argument presents itself that should require us to join the litigation at a later date.” (1) In other words, Nevada’s attorney general could discern no credible legal argument to support the case.
The Supreme Court’s decision not simply to review the constitutionality of the law — now challenged by a total of 26 states — but to schedule unprecedented oral argument profoundly speaks to the professional judgment of the attorney general. None of the lower courts considering the dozens of cases challenging law have opined that the PPACA is so clearly constitutional that any legal challenge lacked credibility under the law. And for good reason.
For the 221 years before the PPACA was enacted and since the first U.S. Congress convened in 1789, the federal government has never required U.S. citizens to purchase any product as a condition of maintaining good standing before the government. As the non-partisan Congressional Budget Office reported:
A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. (2)
More troubling than the attorney general’s professional judgment was her decision to ignore Nevada law and refuse the request of a sitting governor to represent Nevada’s citizens in litigation.
Whenever the Governor directs or when, in the opinion of the Attorney General, to protect and secure the interest of the State it is necessary that a suit be commenced or defended in any federal or state court, the Attorney General shall commence the action or make the defense. – NRS 228.170(1)
This law leaves no room for the attorney general to abandon her duty when a governor determines that Nevada’s interests must be protected and secured through litigation. If the attorney general believed that the governor had requested the commencement of truly baseless litigation, she had several options. For example, she could seek a judicial declaration of her legal obligations under the circumstances or appointment of special counsel. But one thing that the state’s chief legal and top law enforcement officer can not do is unilaterally ignore the law.
The states’ constitutional challenge is now before the U.S. Supreme Court. It is far from baseless. The case raises the most important and far-reaching constitutional issues of our time. Nevada’s top lawyer should be part of the action, not missing in action.
1: Letter from Catherine Cortez-Masto to Jim Gibbons dated March 30, 2010.
2: Cong. Budget Off. Memo., “The Budgetary Treatment of an Individual Mandate to Buy Health Insurance” at 1 (1994); see Cong. Research Serv;, “Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis” at 3 (2009)