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.