The list of state Attorneys General working to get into federal court to stop ObamaCare may go up by at least one.  Wisconsin’s AG, J. B. Van Hollen, announced earlier this afternoon that he wants authorization from either the Governor or the legislature to file suit against the individual mandate in the health-care overhaul bill signed by Barack Obama this week.  His office released the following statement:

ATTORNEY GENERAL VAN HOLLEN SEEKS AUTHORIZATION TO CONTEST CONSTITUTIONALITY OF HEALTH CARE OVERHAUL

“Wisconsin must act to protect its sovereign interests

and the interests of the citizens of this state…”

MADISON – Attorney General J.B. Van Hollen today requested authorization necessary to bring an action to contest certain provisions of the federal Patient Protection and Affordable Care Act and protect Wisconsin’s sovereign interests and that of its citizens. The request was made to Governor James E. Doyle and both Senate and Assembly leadership.

State law requires the Governor or either house of the Legislature authorize the Attorney General to file all such actions.

Attorney General Van Hollen has concluded there exists sufficient legal basis to contest the constitutionality of the Patient Protection and Affordable Care Act based on its threat to the individual interests of Wisconsin citizens and the sovereign interests of the state.

That could be tough.  Governor Doyle is a Democrat, and both chambers of the legislature are controlled by Democrats.  The likelihood of their allowing Van Hollen to sue seems fairly low.  However, Doyle is retiring at the end of the year, and the legislature has to face the voters in seven months.

But what is the likelihood of success for this lawsuit?  In a letter to the state’s leadership, Van Hollen says that he thinks Congress overreached on the mandate as well as abused its powers under the Constitution:

Based on my preliminary review of the Act, I have concluded that a sufficient legal basis exists to contest the individual mandate to carry health insurance or pay a penalty under the Act.  It is not clear that Congress has an enumerated power under Article 1 of the U.S. Constitution to impose this requirement on a citizen.  Further, the tax imposed on a citizen for failure to carry such insurance may not comport with the requirement that any direct tax be apportioned among the states in accordance with Article 1, Sections 2 and 9 of the U.S. Constitution.

In addition, I am very concerned that the Act upsets the proper balance of power between the federal government and the states that was envisioned by the Founders.  The federal government is a government of limited, enumerated powers.  For Congress to act, it must have power given to it by the U.S. Constitution.  Any power not given to the federal government resides with the states under the Tenth Amendment, unless the exercise of state power is limited by a state constitution.  What Congress has approved in the Act is a sweeping mandate that every citizen in the country purchase health insurance or face a penalty.  The power asserted here is unprecedented and unique.  The United States Supreme Court has not had a prior opportunity to evaluate an equivalent exercise of power by Congress under the Act.  As the state attorney general, I have a unique obligation to ensure that the citizens of our state, through their elected representatives, retain the power to determine our own laws without encroachment from the federal government, except as authorized by the U.S. Constitution.  Importantly, the Wisconsin Legislature has never enacted a law to require our citizens to carry health insurance or face a penalty.

As the state’s lawyer, I take very seriously my duty to protect our State’s sovereignty.  Although several states have initiated legal action and there are likely to be more challenges to the Act made by other states and individual citizens, I believe that Wisconsin must act to protect its sovereign interests and the interests of the citizens of this State by bringing an action to contest the constitutionality of the Act.  I therefore request authorization under section 165.25(1m) of the Wisconsin Statutes to bring such an action.

I’ll speak with AG Van Hollen later this afternoon, after the end of my show today, to discuss this further, and I’ll post the interview this evening.