First, here are the relevant documents related to Attorney General Roy Cooper’s decision not to join the lawsuit challenging whether the recently enacted health care bill is constitutional.

  • Cooper’s Letter to Governor Perdue (PDF–via News and Observer)
  • Legal Analysis by Solicitor General Christopher Browning (This is the important document–PDF, via News & Observer)

In the legal analysis, not once does Mr. Browning address the issue of Congress regulating “inactivity.”  Mr. Cooper nor anyone in the AG’s office should claim that their decision was made on pure legal grounds when they don’t even address the primary legal question.

I actually tend to agree with most of their legal analysis because it simply addresses broad issues that are easy to resolve.  Congress certainly has the power to regulate interstate commercial activities and yes, they even can regulate health insurance.  However, this doesn’t mean that Congress can regulate a person for not taking action (in this case, not buying health insurance).

By not addressing this question, they undermine the credibility of their legal analysis and make it look like the decision is simply political in nature.

Mr. Cooper should ask Mr. Browning (or whomever) to provide a proper legal analysis, not one that avoids the issues.  The current legal analysis is so incomplete that reliance on it is inappropriate and merely looks to be weak cover for a political decision.