Yesterday, Wisconsin Attorney General J. B. Van Hollen announced that he would seek authorization from the legislature or the Governor to file a lawsuit to block the federal government from enforcing the individual mandate in his state. Van Hollen explained that in Wisconsin, the AG doesn’t have the ability to represent the state in such an action unless specifically authorized by constitutional authorities — and since the Governor and leaders of both chambers of the legislature are Democrats, the politics of getting that authorization appear difficult. In an exclusive interview with Hot Air, Van Hollen explains how he plans to proceed once authorized to act, whether that happens now or after the next election in November:
Given the debate even among conservative attorneys on the prospects for getting the mandate overturned in federal court, I asked Van Hollen to explain his legal strategy, assuming he gets authorization to proceed, in overcoming what will likely be skepticism from the federal courts. Van Hollen felt very optimistic that the unique and unprecedented nature of the mandate would make for a compelling argument for overturning at least those portions of the system. “No federal court, including the Supreme Court, has ever ruled” on the notion of Congress requiring residents to buy a service in order to remain in the US, and such a mandate “just to exist” would render meaningless the balance of power between Washington and the states.
Of course, just to get to that lawsuit, Van Hollen has to get authorization from the Democrats to sue. Van Hollen said that he could wait for a new Governor or the next session of the legislature, but Van Hollen believes that even the current legislature will feel motivated to act. After all, an encroachment on state sovereignty comes at the cost of the legislature itself. Governor Jim Doyle even asked Van Hollen to file an amicus brief in another case of federal pre-emption, and has never balked at fighting encroachment by Washington before now.
The AGs filing lawsuits around the country must see some prospects for victory in court action; Van Hollen explains why they believe it. The key: Van Hollen thinks that the courts may be looking for a case that will allow them to curtail Congress’ increasingly expansive treatment of the Interstate Commerce Clause. Be sure to watch the entire interview.