Wisconsin’s Attorney General J.B. Van Hollen has announced his desire to bring a lawsuit challenging a provision of the Patient Protection and Affordable Care Act passed by both the U.S. House of Representatives and the U.S. Senate this week. Van Hollen, who is a Republican, will need the approval of either Governor Jim Doyle, the State Senate, or the State Assembly. However, Doyle is a Democrat who supports the new law, and both chambers of the Wisconsin legislature have a Democratic majority.
Governor Doyle has already gone on record denying the Attorney General’s request, calling the proposed lawsuit “a frivolous and political attempt to thwart the actions of Congress and the law of the country.”
Van Hollen, who ran on a platform in which he identified the backlog of forensic DNA evidence in the State Crime Lab as the single most important public safety issue facing the Department of Justice and Wisconsin's justice system, believes that the new health care law’s requirement that all individuals purchase health insurance is unconstitutional.
In a letter to Governor Doyle and the leadership of the State Legislature, Van Hollen stated his belief that the new law usurps the power of the states and thus “upsets the proper balance of power between the federal government and the states that was envisioned by the Founders.”
Van Hollen is one of at least a dozen states attorneys general – all of whom are Republicans - that are planning or hoping to challenge the new law based on the purchase mandate.
According to Van Hollen, in an interview with Madison radio station WTMJ’s Charlie Sykes, if he does not receive approval by at least one of the three entities – the governor or one of the chambers of the state legislature – he can not move forward with his recommended lawsuit because of the way the state law structures the duties of the State Attorney General’s office.
Van Hollen said that even if he is not permitted to proceed, he “would expect, because of the nature of the litigation and because of the high profile nature of it and because it’s an unsettled question, that [a lawsuit brought by various states attorneys general] would eventually make it to the United States Supreme Court.” However, he cautions that there are no guarantees that the U.S. Supreme Court will ultimately hear such a case, although he said he hopes they will.
Van Hollen went on to say that it is not unprecedented for the State Attorney General gain approval from the legislature to bring suit in a case in which the governor refuses to do so. There have been some Second Amendment cases for which authorization was given by the State Assembly to bring suit even against the wishes of the governor.
While Van Hollen said that realistically it is unlikely he will be given authorization to proceed with the lawsuit, he does hold out some hope that members of the legislature would want to protect what he sees as States’ rights to certain powers.