States must challenge health care law

During the six hours of television airtime consumed in 2008 by the four presidential and vice-presidential debates, there was virtually no discussion of the “Constitution” by the four candidates.  In fact, according to my calculations at the time, the word “Constitution” was uttered only once during the entire series.  In just the past week since the House of Representatives passed the massive health care legislation at the behest of the Obama Administration, the airwaves have been flooded with references to and extensive debates about the constitutionality of the measure which is now federal law.

Democrats in the Congress and in the administration assert confidently that the new law’s provisions will pass constitutional muster in the courts.  However, attorneys general in more than a dozen states, along with various public-interest legal foundations, already have filed federal suits challenging the law. While it obviously is far too early to predict with any degree of confidence how the courts eventually will rule on these challenges, the fact that the Constitution is front and center in the current debate, should be welcome news to anyone concerned with the rampant growth of government power in recent years.

More often than not when a new federal law or regulation mandates behavior or taxation, the debate focuses not on the constitutional propriety of such mandates, but their cost.  Certainly cost is important; particularly when – as with the  majority of federal programs – the government does not fund the mandates. The new health care law, with its nearly $1 trillion price tag, has individual states deeply concerned about how to pay for it.  Georgia’s Governor Sonny Perdue, for example, worries how the Peach State will fund what he estimates will be an additional billion dollars of Medicaid spending each year.  Private companies, which will be subject to numerous mandates by virtue of the law, face daunting fiscal challenges as well.  Caterpillar, Inc., the world’s largest manufacturer of construction equipment, predicts it will have to spend some $100 million to meet the law’s requirements.

As difficult as will be the challenge to states and companies to meet the dollar mandates of the health care law, any legal challenge based on cost alone would be doomed to certain failure.  Federal courts have for decades tossed out virtually every challenge to federal programs based on their cost.  That history alone should make a state attorney general contemplating a legal challenge to the health care law think twice.  Making the equation bleaker still is the fact that since the 1930s, only a handful of substantive challenges to federal mandates have been successful.

Why then already have well over one dozen state attorneys general filed suit challenging the health care law?  Obviously each is keenly aware of the at-best modest likelihood of success; and each of their governors certainly has reminded them that their state coffers can ill afford the cost of pointless litigation.

What takes these challenges out of the realm of “jousting at windmills” and breathes life into them, is the fact that this new federal law forces actions never before mandated by Washington.  For example, the law will require individual citizens to purchase health insurance whether they want to or not; and will levy a tax penalty on them if they refuse.  It is this “individual mandate” that offers at least a reasonable chance for a successful challenge to the law.

Here in Georgia, Governor Perdue has indicated he will pursue a challenge using lawyers other than the state attorney general, Thurbert Baker, who has refused to lend his office and his name to the project.   Perdue, unlike Baker, correctly understands the importance of such a lawsuit; for if the federal government is permitted to enforce mandates such as those in this new law, then there will be virtually no activity by a state, a citizen, or a business that the feds would not someday be able to regulate.

71 comments Add your comment

Tim Geitner

March 29th, 2010
1:33 pm

Hey! What’s the big deal? If you’re a big Dem like me—you don’t have to pay taxes! Charlie Rangel, Tom Daschle are my buddies!

Scout

March 29th, 2010
1:37 pm

neo-Carlinist:

I am retired (after 34 years plus military) but I have always wondered how that law could stick without a conviction. In addition, how is it that everyone convicted of a crime (felony) eventually gets EVERY ONE of their Constitutional rights back except for voting and the 2nd Amendment. I think they should get both back (unless their crime was one of violence) after they have served their sentence and are off probation.

Fix-It

March 29th, 2010
1:38 pm

The whole reason for this take over is that the liberals are all out of your money and need more. If the social security administration had keep their money separate from the “general fund” it would be ok, but some wonderful government works said we will just put it back later, well, it is later…. Rather than own up to their own inability to balance a check book the dimacrats just voted themselves more of your money. Boy they are really a smart bunch… NOT

Barry Obama

March 29th, 2010
1:38 pm

Pay no attention to the man behind the curtain! I am the great and powerful Community Organizer! You will do whatever I command! It doesn’t have to be Constitutional if I so command it. I am also known as King, and The Annointed One.

Presbo

March 29th, 2010
2:19 pm

Everyone keeps talking about something called the “Constitution”. What is that?

neo-Carlinist

March 29th, 2010
2:24 pm

actually, the Constitution is the “curtain” to which the previous poster refers. Oh, and “Barry” every President in recent memory has “hid” behind the curtain (both parties)

Yvette

March 29th, 2010
2:27 pm

Here we go again. Complaining, complaining, with little or no merit. We have rights to our own opinion however have a solid foundation at the base. So many times, people opt to take the lazy/easy way and form their opinion on news reports in leiu of performing their own researching. The Fox Channels for example loves to report negative, half truth, and misleads the public whenever it involves our President Obama. No one complained when former President Bush attempted a health reform bill that didn’t pass or how we at war due to the the oil debt that belong to companies that is affiliated with once again our former presidents and a vice president. Now, President Obama is fulling his promises of change. I realize that everyone isn’t going to be happy with all of his decisions and that we aren’t perfect. Then, people are trying to justify their actions of violence based on signing of the Health Reform Law. When in fact, it’s called retaliation of refusal of the acceptance of an AFRICAN AMERICAN PRESIDENT. For those who committed the act(s) of violence against the politicans, I hope you research the penalty/punishment for each crime committed under federal law. Why federal you may ask; the crime were committed due to there position. As for Bob Barr, when he denied his race, that should have told everyone that he has an identity issue within self that has to be resolved before he can make sound decisions for the people. Just for record, I check other when asked about race identity and a disable veteran. I did my research now do yours. Have a great and bless day.

Presbo

March 29th, 2010
3:45 pm

Yes Yvette you are right. The whole problem is that the president is a black man. I hardly noticed. Thanks for pointing that out. I am surprised you could wrap your little brain around that concept. Way to go Einstein!! There’s the answer folks…the president is black.

Th

March 29th, 2010
4:17 pm

I don’t think Bob was being serious about mandatory life insurance or disability insurance, but we are already covered and don’t need to require people to buy their own. Social Security pays a death benefit to your spouse if you die and survivor benefits to your children. My nephew is attending college paid in part by survivor benefits after my brother-in-law was killed in an accident. Your spouse can also collect your Social Security if it is greater than what they would qualify for. Of course everyone knows there are lots of people on Social Security disability payments. Seems to be the income stream of choice for the tea party activists who are not old enough to be on regular Social Security.

Since your annual physical will now be paid by your insurance company at no cost to you, they may well require you to have one just like dental insurance policies require regular check-ups. So, guess what, Bob? You may well have all those mandatory things after all.

Marine

March 30th, 2010
6:03 am

When will Bob tell us about the Government subsidized health care he enjoys?

David

March 30th, 2010
8:19 am

Funny how the republican attorney generals are using one of the few republican ideas in the bill as the basis for the lawsuits. The universal mandate was first brought into the healthcare debate by Sen John McCain and other republicans in the 90’s as a response to HillaryCare. Mitt Romney even supported the idea in a 2008 Op-Ed piece in the Wall Street Journal. And NOW it is “unconstitutional”?

mit

March 30th, 2010
10:42 am

Obama got elected in November 2009 running on health care reform. If it was such a bad idea then how did he win? Mandate for buying health insurance was republican’s idea. So now they are crying about it? Lawsuits to challenge health care law all brought by republicans because they are mad it wasn’t them that passed it; or got elected by running their campaigns on it. Bob Barr, didn’t think you were this wooten. Wooten – adj.’cry baby retards that bring up the constitution when it seems like it will help them, yet don’t really care when its them trying to make laws like the Patriot Act’

ramblwrk68

March 30th, 2010
12:03 pm

Found this in a NYT comment stream today. Credit: Christopher Marengo
Pleasantville, NY:

“I suggest you review Chief Justice John Marshall’s decision in 1824, which is still the law of the land today: He said, in effect, that the Federal government has no authority to make laws in the area of public health…that is left to the states. The case law since 1824 reaffirms this law.
You also might want to look the liberal’s favorite decision, Roe v. Wade, when Justice Blackmun stated that (I’m paraphrasing) that the right exists for people not to purchase health care insurance.”

No More Progressives!

March 30th, 2010
12:55 pm

Robert Littel

March 29th, 2010
9:12 am
“It is to be expected that the forces of egregious and pernicious wealth accumulation are going to mount whatever campaign they can…………”

Pernicious? My Gawd………………….

Perfezor Pinko has spoken!!!!!!!

ugaaccountant

March 30th, 2010
2:55 pm

ramblwrk68

March 30th, 2010
12:03 pm
Found this in a NYT comment stream today. Credit: Christopher Marengo
Pleasantville, NY:

“I suggest you review Chief Justice John Marshall’s decision in 1824, which is still the law of the land today: He said, in effect, that the Federal government has no authority to make laws in the area of public health…that is left to the states. The case law since 1824 reaffirms this law.
You also might want to look the liberal’s favorite decision, Roe v. Wade, when Justice Blackmun stated that (I’m paraphrasing) that the right exists for people not to purchase health care insurance.”

Exactly, this really should end all debate.

Jess

March 30th, 2010
4:26 pm

Meanwhile, Rep. Waxman is calling for congressional hearings related to AT&T and Catipillar’s claim that this bill will cost them $1billion and $150 million respectively because they dared share this info with their shareholders. Both AT&T and Catipillar Have been asked to supply all written and electronic correspondence to congress.

Warning your shareholders of a large hit to their bottom line is now apparently a problem for our government. And I thought keeping shareholders informed was a good thing. More change we can believe in.

No More Progressives!

March 30th, 2010
4:53 pm

Jess

March 30th, 2010
4:26 pm
Meanwhile, Rep. Waxman is calling for congressional hearings related to AT&T and Catipillar’s claim that this bill will cost them $1billion and $150 million respectively because they dared share this info with their shareholders. Both AT&T and Catipillar Have been asked to supply all written and electronic correspondence to congress.

Warning your shareholders of a large hit to their bottom line is now apparently a problem for our government. And I thought keeping shareholders informed was a good thing. More change we can believe in.

In Little Barry Soetoro’s world, all information is to pass through the Federal Imperial Government. Soon, you’ll be stopped in the street by a guy in sunglasses with a dark suit that doesn’t fit, who demands: “Let me see your papers.”

AT&T and Cat are responsible to their shareholders; soon there will be only one share: Little Barry’s.

Jess

March 30th, 2010
5:30 pm

No More…….

Obama has gotten a copy of Chavez’s play book I’m afraid.

TW

March 30th, 2010
7:34 pm

You bigots were a lot more fun when you had the stones to use the N-word.

And you were a lot more credible before you spent eight years in ‘w’s rectum.

Please, either grow a pair or create a defensible argument worthy of the educated world.

No More Progressives!

March 30th, 2010
9:02 pm

TW

March 30th, 2010
7:34 pm
You bigots were a lot more fun when you had the stones to use the N-word.

And you were a lot more credible before you spent eight years in ‘w’s rectum.

Please, either grow a pair or create a defensible argument worthy of the educated world.

And I guess only you are the arbiter of the educated word, correct?

Such a classy and eloquent remark from such a brilliant writer of deathless prose you are.

Angela the life insurance guru

April 12th, 2010
6:15 pm

thanks for the information! I’m always interested in the healthcare debate. I’ll bookmark this site.