Are The Attorneys General’s Constitutional Claims Bogus?

6a00d8341c909d53ef012876544c5e970c-320wi Immediately after passage of health care reform, over a dozen state A.G.s sued to declare it unconstitutional, as violating states’ rights. The Florida complaint is here, and Virginia’s here. Reminiscent of southern governors in the 1960s blocking their state universities’ gates, these legal officers in effect are saying “not on our sovereign soil.” Since the constitutional issues have already been hashed through so thoroughly, what’s new to talk about?

First, the Florida complaint, which a dozen other states joined (AL, CO, ID, LA, MI, NE, PA,SC, SD, TX, UT, WA), focuses mainly on the financial burdens of expanding Medicaid. This is challenged under the “commandeering” principle, as requiring states to devote sovereign resources to achieve federal aims. But, as we know, states are free to withdraw from Medicaid, so the argument seems to fall entirely flat. The complaint makes a bait-and-switch type of estoppel argument , that states got into Medicaid without any expectation of this expansion, and now it’s too damaging for them to withdraw. So, in effect, states argue that the Constitution allows them to keep the federal carrot but refuse the federal stick. Good luck selling that to an appellate court.Second, these states complain about having to implement the insurance purchasing exchanges and their rules, but here again, states are entirely free to opt out and let their citizens use the federal exchange. The only reason states have to implement exchanges is that they insisted the legislation give them this option, rather than forcing everyone into a single national exchange. States can hardly complain about the responsibilities they asked for, especially when they’re still free to duck them.

Third, there are procedural problems. States probably have no standing to enforce arguments about violation of individual rights (which is the main concern regarding the individual mandate). Also, consider the remedy if states were to prevail: It would wreak havoc to overturn the mandate to purchase, but not the mandate for insurers to sell without any medical underwriting. Doing that would cause massive adverse selection and probably destroy some companies and some portions of the market, so a court would have little option but to strike down most or all of the entire law. Surely that measure is extreme enough to give even the most activist judge pause, and so will compel most courts to find every possible way to uphold constitutionality, regardless of political persuasion.

Finally, do state nullification statutes like Virginia’s make a difference? Not according to Harvard’s Charles Fried (who was Reagan’s Solicitor General):

The notion that a state can just choose to opt out is just preposterous…. As long as the federal law is independently constitutional, it doesn’t matter what Virginia says… It’s like Virginia saying we don’t have to pay income tax….One is left speechless by the absurdity of it.

This leaves only the well-worn arguments about exceeding powers to regulate commerce and to tax for the general welfare. On these, most legal scholars are loud and clear about the merits. In sum, as Sandy Levinson’s (Univ. Texas) says, “The argument about constitutionality is, if not frivolous, close to it.”

Previously by this author on THCB: “Is It Unconstitutional to Mandate Health Insurance?

Originally posted at the O’Neill Institute for National and Global Health, Legal Issues in Health Reform and Health Reform Watch, a publication of the Seton Hall School of Law.

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  1. In and before The U.S. Supreme Court Justices Court and
    In and before The People Of The United States Of America.
    I am sorry but this Bill to Law needs to go back to formula.
    Somehow there is just to many people that do not understand the function of the Governing Bodies within Government. First, there are around 60 Personal that hold seats that write these Laws, both Democrat and Republican. Then this Bill for Law goes up for a vote and there is around 500 or so Republican and Democrats that vote. The sling talk of this of being the Obama Bill is not Political Correct within the use of words.
    Now lets get to the issues of this Bill of Law being Unconstitutional.
    1st. I agree this new Health Care Law borders on a Constitutional Infringement and within the rush of putting it into action, a balance of dollar issues is lost. The placement of threats against the People is in fact Unconstitutional.
    Unfortunately the Law Suites against the Bill needs to be restructure within the Concepts Of Constitutional Infringements because it is the voice of the People the guide the destiny of the Country and the decisions within that Court. .For Example, the weight of 100 million peoples words in Court bring weight of value to not destroy this Bill of Law but to take it back to formula.
    2nd. I must agree with people that this Bill to Law is built within the concept of Social Grace and I do not blame people one bit for the out cry of the burden place against Companies and people that make a great deal of money.
    3rd. The use of FASC Concepts 10% per cent on a yearly income that may have been used by Officials is in error because this forum of mine looks into the economic conditions within each home before a placement of payment can go forward. {As of yet there has been no reply by Officials if they used our Concepts.}
    To show people that I do not belong to any Governing Parties or Insurance Companies, please enjoy the Roll back Concepts of FASC.
    4th. Because of failures of Governing Parties, over this existing Tax Forum today, that a 10% percent Roll back be placed into effect on the yearly income of all City, County and Federal Officials within Office. The total savings for the Health Care Economy Stimulus as of now, comes to all most $11,000,000,000.00 Million dollars for ten years, over $100 Million Dollars for just this issue.
    5th. According to information, that Tax Payers pay for over 75% of all Medical Cost for Government Officials. Short link is as follows. As it would seem this Social Grace is not of a equal standing, as stated in Bill 101 of the New Health Care Laws. Government Officials are Civil Servants According to Law and should not be above the Law of this 10% Force Pay on a Yearly Income. The saving here at a low ball figure is $ 27 million dollars per month.
    Health care for U.S. Politicians receive the Countrys ,New health care plan to cover all government people (President, Senators, … leaves office do they lose their federal employee health care or go on cobra like … Make them pay for their own Health care just as we do if they refuse to tax dollar pay 75% for Officials health care need …
    public-health care-issues.suite101.com/…/health_care_for_the_us_congress – Cached – Similar
    6th. FASC tax and pay in Forum, A Concept to help the Poor and Sick, and Freedom of Choice. Brings into the system $100 million to $500 million dollars per month, at a low number $1200 Million per year.
    MIDDLE CLASS TO THE POOR
    FASC Concepts of a guideline of income and a fair payment for the poor to the rich.
    CLASS INCOME MONTHLY PAYMENTS
    {A} format for people making up to $29000.00 per year, EST of monthly cost up to $40.00 per month
    {B} up to $19000.00 per year, EST of monthly cost up to $30.00 per month
    {C} up to $12000.00 per year, EST of monthly cost up to $20.00 per month
    {D} from 0.00 income to $9000.00 per year / cost up to 0.00 to $10.00 per month
    {A} {B} {C} {D} classification based on one person If married policy can be divided or stayed. These are concept numbers to open the mind…………..
    {A}{B}{C}
    My big complaint is that the 10% based, Health Care Forum Bill 101 is lacking inter structure and will not help the economic effected people, and will burden people who all ready have insurance.
    7th. This 1900 pages of Law is untested and only in theory. The fact still remains that because this Health Care System is a $100 Trillion Dollar per year system ,we feel that the Court should place this new Tax Theory { Bill to Law} under Court Supervision for 3 years, because of the failure of Officials to fix the existing Tax System. Without further in site of a balance, only a way to balance the existing in a concept that still eludes practical guidelines. As in I see no back up ideas like {plan B} and it, this Tax Plan is still based on a dollars being a constant flow of cash.
    8th. According to information that there is a plan to lay off City and County workers, that it is considered cheaper to put them on unemployment and Social Services then payroll. What would be more practical is to have every other weekend off or for those who wish, each weekend off. This includes Postal Workers. Also as in Deer field Beach Florida a out side contractor has offered a Bid Per Purposed Contract and lay offs will be against employees under so much time in and on that County job.
    9th. We do understand that Governing Officials are desperate for this Health Care Money, so as a concept of a way to balance trust again between Officials and the People, any Government official that has a Job Concept, they must put up a Bond as a Contractor would to build a project. Once the Job Conclusion has reached a successful point in it creation, Officials receive a refund.
    10th. As stated before, this Health Care Dollar belongs to the People, and I do have this Little Health Care Bug in my Hands. The balance of the views of 250 million people and all this diversity created by Officials is slowly coming to a silence, because I speak for the People and I offer respect to the views in a building block to a Health Care Reform, because of my concept to reform Government within this Health Care Issue.
    In 3 years our budget / deficit, can be a positive balance of $1.2 Trillion Dollars. But first we must put forward a Job, work force to strategically rebuild the United States in a anti / war crime forum. To place Factories where they serve that area of city or town.
    I watched for 7 years this failure reach where it is today, “ I saw this”, but there was no intervention by Officials. Officials had their hats handed to them by Scam Artist, and The Arabic Drug Empire, cave dwellers.
    No I am sorry President Obama, Officials need to earn trust again, and to become as one with the People. This is a way to say, look into the economic conditions at persons home before you over burden their lives, with this Bill to Law. This is why you was voted into Office.
    FASC Concepts in and for Pay it Forward covers the web see why we have become the largest web site in the United States, and we give our thank to the thousands of people who post by us, as one voice.
    on google , yahoo, and aol http://www.fascmovement.mysite.com

  2. Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams says:

    How would the national government compel the state governments to enforce the law? Withhold funds from the state? Threaten officials with jail-time? At the end of the day, a state could simply say “No thank you.”. The legislation is only effective if it can be enforced. Assuming the judicial branch of government rules against the plaintiffs (A.G.s), what happens should the states refuse to enforce or actively hinder the provisions of the legislation? It sounds far-fetched, but a growing population of some of the states listed (including the officials of the mentioned states) believe that the Federal government is exceeding its limits of authority over the states. I’m not referring to the up-tic in “militia” media coverage or creation/enrollment. It is no coincidence that the media are focusing more coverage on “militias” these days. I’m also not referring to the politicians of those states. Whom see a great opportunity to use these sentiments to further their own agendas. Though, that is a good indicator of public sentiment in those states. Why would you align yourself with a doomed platform, unless you really ARE standing by your principles; or more commonly trying to get a job via the ballot box?

  3. Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams says:

    How would the national government compel the state governments to enforce the law? Withhold funds from the state? Threaten officials with jail-time? At the end of the day, a state could simply say “No thank you.”. The legislation is only effective if it can be enforced. Assuming the judicial branch of government rules against the plaintiffs (A.G.s), what happens should the states refuse to enforce or actively hinder the provisions of the legislation? It sounds far-fetched, but a growing population of some of the states listed (including the officials of the mentioned states) believe that the Federal government is exceeding its limits of authority over the states. I’m not referring to the up-tic in “militia” media coverage or creation/enrollment. It is no coincidence that the media are focusing more coverage on “militias” these days. I’m also not referring to the politicians of those states. Whom see a great opportunity to use these sentiments to further their own agendas. Though, that is a good indicator of public sentiment in those states. Why would you align yourself with a doomed platform, unless you really ARE standing by your principles; or more commonly trying to get a job via the ballot box?

  4. Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams says:

    How would the national government compel the state governments to enforce the law? Withhold funds from the state? Threaten officials with jail-time? At the end of the day, a state could simply say “No thank you.”. The legislation is only effective if it can be enforced. Assuming the judicial branch of government rules against the plaintiffs (A.G.s), what happens should the states refuse to enforce or actively hinder the provisions of the legislation? It sounds far-fetched, but a growing population of some of the states listed (including the officials of the mentioned states) believe that the Federal government is exceeding its limits of authority over the states. I’m not referring to the up-tic in “militia” media coverage or creation/enrollment. It is no coincidence that the media are focusing more coverage on “militias” these days. I’m also not referring to the politicians of those states. Whom see a great opportunity to use these sentiments to further their own agendas. Though, that is a good indicator of public sentiment in those states. Why would you align yourself with a doomed platform, unless you really ARE standing by your principles; or more commonly trying to get a job via the ballot box?

  5. Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams says:

    How would the national government compel the state governments to enforce the law? Withhold funds from the state? Threaten officials with jail-time? At the end of the day, a state could simply say “No thank you.”. The legislation is only effective if it can be enforced. Assuming the judicial branch of government rules against the plaintiffs (A.G.s), what happens should the states refuse to enforce or actively hinder the provisions of the legislation? It sounds far-fetched, but a growing population of some of the states listed (including the officials of the mentioned states) believe that the Federal government is exceeding its limits of authority over the states. I’m not referring to the up-tic in “militia” media coverage or creation/enrollment. It is no coincidence that the media are focusing more coverage on “militias” these days. I’m also not referring to the politicians of those states. Whom see a great opportunity to use these sentiments to further their own agendas. Though, that is a good indicator of public sentiment in those states. Why would you align yourself with a doomed platform, unless you really ARE standing by your principles; or more commonly trying to get a job via the ballot box?

  6. Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams says:

    How would the national government compel the state governments to enforce the law? Withhold funds from the state? Threaten officials with jail-time? At the end of the day, a state could simply say “No thank you.”. The legislation is only effective if it can be enforced. Assuming the judicial branch of government rules against the plaintiffs (A.G.s), what happens should the states refuse to enforce or actively hinder the provisions of the legislation? It sounds far-fetched, but a growing population of some of the states listed (including the officials of the mentioned states) believe that the Federal government is exceeding its limits of authority over the states. I’m not referring to the up-tic in “militia” media coverage or creation/enrollment. It is no coincidence that the media are focusing more coverage on “militias” these days. I’m also not referring to the politicians of those states. Whom see a great opportunity to use these sentiments to further their own agendas. Though, that is a good indicator of public sentiment in those states. Why would you align yourself with a doomed platform, unless you really ARE standing by your principles; or more commonly trying to get a job via the ballot box?

  7. Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams says:

    How would the national government compel the state governments to enforce the law? Withhold funds from the state? Threaten officials with jail-time? At the end of the day, a state could simply say “No thank you.”. The legislation is only effective if it can be enforced. Assuming the judicial branch of government rules against the plaintiffs (A.G.s), what happens should the states refuse to enforce or actively hinder the provisions of the legislation? It sounds far-fetched, but a growing population of some of the states listed (including the officials of the mentioned states) believe that the Federal government is exceeding its limits of authority over the states. I’m not referring to the up-tic in “militia” media coverage or creation/enrollment. It is no coincidence that the media are focusing more coverage on “militias” these days. I’m also not referring to the politicians of those states. Whom see a great opportunity to use these sentiments to further their own agendas. Though, that is a good indicator of public sentiment in those states. Why would you align yourself with a doomed platform, unless you really ARE standing by your principles; or more commonly trying to get a job via the ballot box?

  8. Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams says:

    How would the national government compel the state governments to enforce the law? Withhold funds from the state? Threaten officials with jail-time? At the end of the day, a state could simply say “No thank you.”. The legislation is only effective if it can be enforced. Assuming the judicial branch of government rules against the plaintiffs (A.G.s), what happens should the states refuse to enforce or actively hinder the provisions of the legislation? It sounds far-fetched, but a growing population of some of the states listed (including the officials of the mentioned states) believe that the Federal government is exceeding its limits of authority over the states. I’m not referring to the up-tic in “militia” media coverage or creation/enrollment. It is no coincidence that the media are focusing more coverage on “militias” these days. I’m also not referring to the politicians of those states. Whom see a great opportunity to use these sentiments to further their own agendas. Though, that is a good indicator of public sentiment in those states. Why would you align yourself with a doomed platform, unless you really ARE standing by your principles; or more commonly trying to get a job via the ballot box?

  9. Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams says:

    How would the national government compel the state governments to enforce the law? Withhold funds from the state? Threaten officials with jail-time? At the end of the day, a state could simply say “No thank you.”. The legislation is only effective if it can be enforced. Assuming the judicial branch of government rules against the plaintiffs (A.G.s), what happens should the states refuse to enforce or actively hinder the provisions of the legislation? It sounds far-fetched, but a growing population of some of the states listed (including the officials of the mentioned states) believe that the Federal government is exceeding its limits of authority over the states. I’m not referring to the up-tic in “militia” media coverage or creation/enrollment. It is no coincidence that the media are focusing more coverage on “militias” these days. I’m also not referring to the politicians of those states. Whom see a great opportunity to use these sentiments to further their own agendas. Though, that is a good indicator of public sentiment in those states. Why would you align yourself with a doomed platform, unless you really ARE standing by your principles; or more commonly trying to get a job via the ballot box?

  10. Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams says:

    How would the national government compel the state governments to enforce the law? Withhold funds from the state? Threaten officials with jail-time? At the end of the day, a state could simply say “No thank you.”. The legislation is only effective if it can be enforced. Assuming the judicial branch of government rules against the plaintiffs (A.G.s), what happens should the states refuse to enforce or actively hinder the provisions of the legislation? It sounds far-fetched, but a growing population of some of the states listed (including the officials of the mentioned states) believe that the Federal government is exceeding its limits of authority over the states. I’m not referring to the up-tic in “militia” media coverage or creation/enrollment. It is no coincidence that the media are focusing more coverage on “militias” these days. I’m also not referring to the politicians of those states. Whom see a great opportunity to use these sentiments to further their own agendas. Though, that is a good indicator of public sentiment in those states. Why would you align yourself with a doomed platform, unless you really ARE standing by your principles; or more commonly trying to get a job via the ballot box?

  11. Right you are. My mistake. It is , however, a bill of attainder, which is not allowed.

  12. MD as HELL: you read the wrong part of the US Constitution. Article 1, sec 10 limits the powers of State governments, not those of the federal government.
    Your statement that Congress cannot restrict the right of contract does not appear anywhere in the US Constitution.

  13. Article 1, sec. 10. Congress shall pass no law restricting the right of contract. This means there is no power to force inclusion of pre-existing conditions. This means the law is unconstitutional.
    Duh!

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