The right eloquence needs no bell to call the people together and no constable to keep them. ~ Emerson

Monday, March 29, 2010

Targeting Healthcare Reform

By Restricting the Things They Don’t Want Guaranteed by Federal Law, Republicans Might Also End Up Restricting Guarantees They Do Want

No, not the graphics on Sarah Palin’s website or a rash of threats against Democratic lawmakers – the targeting in question is by mostly Republican state Attorney Generals, who hope to strike down recently passed healthcare reform legislation by having it declared Unconstitutional in federal court.

The first challenge came from a consortium of thirteen states, consisting of Florida, South Carolina, Nebraska, Texas, Michigan, Utah, Pennsylvania, Alabama, South Dakota, Louisiana, Idaho, Washington and Colorado. This group filed suit immediately after President Obama signed the bill into law. The second challenge, filed a day later, was from Virginia, choosing to go it alone.

According to the joint suit, the new healthcare law violates “the core Constitutional principle of federalism upon which this nation was founded.” The Virginia suit agrees, arguing, “[It is] contrary to the foundational assumptions of the Constitutional compact.”

Despite the vehemence of the protests, conventional legal wisdom says these challenges have virtually no chance of succeeding because the Constitution’s commerce clause indisputably establishes the precedence of federal laws over state laws.

“They can sue but I can't imagine a scenario in which a judge would enjoin the implementation of the federal healthcare bill,” maintains Lawrence Friedman, a Constitutional Law Professor at the New England School of Law in Boston. “Federal law is supreme. There's really no room for doubt that federal law controls.”

The challengers disagree or at least insist upon exceptions to this dictum. Their arguments are two pronged.

First, the suits disagree the commerce clause is so board as to give the federal government power to force an individual to buy something, particularly something that individual does not want. “The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage,” the Virginia suit reads.

“Just being alive is not interstate commerce,” adds Virginia Attorney General Ken Cuccinelli. “Never before in history have we been required to purchase something.”

Some legal experts believe this argument has merit. Professor Randy Barnett of the Georgetown University Law Center notes that federal courts have never cited the commerce clause as justification to “require a person who does nothing to engage in economic activity.”

Second, the suits call upon the protections of the Tenth Amendment, which says powers not granted to the federal government by the Constitution remain reserved for the states.

Michael Boldin, founder of the Tenth Amendment Center, points to medical marijuana as an example in which states have successfully circumvented the federal government. Fourteen states currently allow the use of marijuana for medical purposes, even though federal law prohibits its use under any circumstances.

“To me what that indicates is when there are enough people refusing to comply with the federal government and enough states passing laws that also refuse to comply, it is very difficult for the federal government to enforce their laws,” Boldin said.

While Boldin’s take on this matter is admittedly biased, other legal experts agree with his core principle. Dave Roland, a lawyer and policy analyst at the Show-Me Institute, a nonpartisan think tank in Saint Louis, said state constitutional amendments geared toward creating new rights for individuals could challenge federal healthcare mandates.

“I think there is a very distinct possibility that the Supreme Court might say that where you have a freedom secured by a state constitution that it might warrant protection, even against a federal statute,” asserts Roland.

Those favoring healthcare reform have ready counters for each of these arguments.

Where the commerce clause is concerned, they contend the federal government has power to regulate activities that have a cumulative effect on the economy. Since the federal law requires all uninsured brought into national risks pools in order to succeed, the federal government can Constitutionally regulate their activities.

“When uninsured people get sick, they rely on their families for financial support, go to emergency room [often passing on costs to others], or purchase over-the-counter remedies,” explains Professor Jack Balkin of Yale Law School. “All these effects are economic.”

Other legal scholars argue the insurance requirement constitutes a tax, as opposed to a personal mandate, and that the Constitution gives Congress broad power to tax.

In the case of medical marijuana and the Tenth Amendment, the federal government might withhold enforcement out of humanitarian concerns, allowing states to protect the rights of suffering individuals at the expense of a total ban. This is exactly what would come from providing healthcare coverage to those currently uninsured – requiring similar restraint exercised by the states.

Challenges to federal restrictions tend to succeed when the restrictions place an undue burden on fundamental rights. As Professor Mark Hall of Wake Forest University observes, “There is no fundamental right to be uninsured.”

Those supporting healthcare reform think they have unearthed a devastating “gotcha” for Republican opponents. During the failed attempt at reform in the 1990s, many Republicans and other conservatives touted an individual mandate as a healthy free market alternative to the “socialistic” single-payer model proposed by Hillary Clinton. Today, the same idea has somehow morphed into socialism.

Yet it was first and foremost a Republican idea, according to health economist Mark Pauly of the University of Pennsylvania's Wharton School. Democrats dream of campaigns in which they can accuse Republican opponents of voting for individual mandates before they voted against them.

They may be missing another smoking gun – quite literally!

Any federal court challenge of healthcare reform will eventually make its way to the Supreme Court. Republicans are counting on conservative Justices to rule that states rights can trump federal authority where healthcare reform is concerned. Yet in the pending case of McDonald v. Chicago, they are counting on the same Justices to rule just the opposite regarding the right of states to institute gun bans versus a federally mandated right to bear arms. Everyone expects the Court to incorporate this federal right to states but both sides agree much litigation remains over what constitutes reasonable restrictions.

Linda Greenhouse, a close watcher of the Court, notes that Chief Justice Roberts “is an acutely image-conscious Chief Justice, as watchful and protective of the Supreme Court’s image as he is of his own.” Roberts is on record with strongly worded dissents against state rights in the cases of Massachusetts v. Environmental Protection Agency and Gonzales v. Oregon. Granted, these were both for powers – regulating global warming and physician-assisted suicide – that he believes government should not possess at any level.

If Roberts allows his fellow conservatives to deny state restrictions on gun ownership while simultaneously upholding similar restrictions on healthcare reform, he will go down in history as the most activist conservative jurist to date. Consistency in this matter will surely weigh heavily on his mind, both now and in the future.

To this extent, the stronger/better arguments that Republican state Attorney Generals make now against federal mandates for healthcare reform, the more they may pave the way for more repressive restrictions on gun ownership. If a majority of state voters wants such restrictions, what is the difference whether the will of the people is against gun ownership or healthcare reform? How does federalism apply in one case but not the other, besides obvious partisan ideological preference?

Some argue that allowing the federal government an individual mandate for healthcare reform opens a slippery slope in which the federal government gains unlimited power to regulate anything. Yet far more random and dangerous is allowing popular votes to decide what aspects of the Constitution each state chooses to reject and which it chooses to follow. It is not hard to imagine that most will choose to reject any costs or restrictions but embrace any privileges or benefits.

Republicans may want to think twice about placing healthcare reform in their sights. When they pull the trigger, they may find the only thing they have shot is themselves in the foot.

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