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The cynical lawsuit against Obama's individual mandate

Posted by Alan Wirzbicki  June 2, 2011 03:09 PM

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The lawsuit against President Obama's health care law that's making its way through federal court looks like an increasingly cynical exercise by advocates trying to score ideological points. At least, that's the feeling I got upon learning that one of the lead plaintiffs, Jann DeMars, actually already has health insurance, and would not be affected by the individual mandate the suit seeks to stop. She bought her policy through work. Good for DeMars for obtaining the coverage many Americans lack. Really, good for her. And now the courts should dismiss her case.

As any first-year law student knows, our constitution requires courts to hear arguments regarding only "cases and controversies." The Framers did not want a Supreme Court to issue rulings or judgments where there was no real harm. It keeps our courts from pontificating wildly about policy matters that are left to the more political branches — the president and Congress — to fight out.

So, plaintiffs must be harmed, and must suffer a harm that is recognized by the law. DeMars’s entire legal case rests on some notion that while she wouldn’t be covered by the individual mandate, the requirements in the law would "change her lifestyle."

It is telling, however, that DeMars's lawyers from the Thomas More Law Center didn't insist she remain uninsured throughout the trial. Perhaps they even viewed that as legal malpractice. But the fact that the plaintiff challenging the individual mandate would not even be personally affected by it does expose just how ideological the fight over the health care law has become. Indeed, her lawyers seem unfazed by the facts of the case. To health care critics, the actual facts of the case seem to be a mere nuisance, a distraction from their grand policy disagreement with the health care law.

It's as if the litigation seeking to overturn the law is all a big joke: who cares that DeMars doesn't have standing, we know what this case is really about. The courts need to insist that they won’t be a political venue — and that even for an issue as highly charged as health care, the normal rules still apply.

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ABOUT THE ANGLE Online commentary and news analysis from the Boston Globe. The Angle is produced by Rob Anderson and Alan Wirzbicki. You can follow Rob on Twitter at @rcand.

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