Elizabeth Weeks Leonard *

What is it about health reform—about the particular exercise of federal power to compel the purchase of health insurance by individuals—that has sparked such concerted objection from states? Congress has reached deeply into areas of traditional state authority on other occasions in recent memory, without similarly provoking a majority of states to file federal lawsuits or engage in a multi-front attack to dismantle a validly enacted federal statute. How has a federal law, which most clearly infringes on individual rather than states’ rights, become the rallying cry for a nationwide Tenth Amendment reinvigoration movement? In keeping with the 2011 Allen Chair Symposium’s “Everything But the Merits” theme, this essay considers states’ lawsuits not merely beyond the merits but even beyond the litigation itself and places the litigation strategy in the larger context of other forms of state resistance to implementation of the Patient Protection and Affordable Care Act (“ACA” or “Act”).

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*     Associate Professor, University of Georgia School of Law. J.D., 1999, University of Georgia; B.A., 1993, Columbia University. I am grateful to Carl Tobias and Kevin Walsh for inviting me to the 2011 Allen Chair Symposium and all of the Symposium participants for a stimulating discussion.