A.G. Swanson should have sued over health care

Written by Jeff Johnson on April 6, 2010. Posted in General

The Star Tribune printed an opinion piece I wrote today regarding Attorney General Lori Swanson’s decision not to file suit challenging the constitutionality of the new health care law. 

I should add a disclaimer: I lost the 2006 A.G. election to Swanson (and I can’t even argue voter fraud, as there were far too many votes separating us to blame on any ACORN conspiracy or a lost ballot box on the Iron Range).  So, for me, this is a little like fantasy football: I get to pretend I’m in charge of something even though I’m really just watching from the stands.

Jeff Johnson: Swanson Should Have Backed Suit

Fourteen states’ attorneys general have filed lawsuits challenging the constitutionality of the new national health care law. Recently, Gov. Tim Pawlenty asked Minnesota Attorney General Lori Swanson to join those suits on behalf of the people of Minnesota. Not surprisingly, Swanson has informed the governor that she will not challenge the new law and, in fact, will file a brief arguing in its favor.

In Minnesota, the attorney general is the governor’s lawyer. That does not mean the attorney general is required to do the governor’s every bidding. If, for example, the governor requests the initiation of a baseless lawsuit or seeks to use the courts for partisan purposes (and I recognize we Republicans can play the partisan game with the best of them), there would be a strong basis for the attorney general to rebuff her client.

Pawlenty’s request, however, was not such a case. Instead, it set forth a very legitimate constitutional concern that every Minnesota citizen should share.

The strongest argument against the constitutionality of this new law concerns the provision requiring every citizen to purchase a federally approved health insurance plan or face a fine from the IRS.

The 10th Amendment to the Constitution states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.”

The 10th is short, sweet and crystal clear: The federal government only has powers to do those things listed in the Constitution. If a power is not enumerated in the Constitution, the federal government does not have that power.

So where in the Constitution is the federal government given power to coerce every individual to purchase a government-approved product in the private marketplace? Swanson stated in her letter to Pawlenty that the “Commerce Clause” provides the authority for such an action.

Article I, Section 8, of the Constitution provides Congress with the authority to “regulate commerce … among the several states.” Swanson argues that the health insurance industry is engaged in interstate commerce and requiring the individual health care mandate is apparently nothing more than “regulation” of that industry.

The U.S. Supreme Court has been expansive in allowing the federal government to regulate all sorts of economic activities under the Commerce Clause. No one questions, however, that the Supreme Court has never gone so far as to allow the federal government to force all citizens to buy a particular product.

If the Commerce Clause is that expansive, what limit would there be on the federal government’s power over how we spend our money?

But what about the automobile insurance mandate? Some (including President Obama) compare the new health insurance mandate to the permissible practice of government-mandated auto insurance.

The federal government, however, does not require the purchase of auto insurance. Only state governments have that authority. Courts have agreed that state governments have a general “police power” that enables them to pass laws for public safety and health. This general police power does not exist for the federal government.

This is not a question of whether the new health care law is good policy; it’s a question of whether the U.S. Constitution even matters anymore. If we choose to ignore the legitimate constitutional questions surrounding this enormous expansion of federal power over every American, there will be little individual economic activity left that the federal government cannot control.

I don’t always agree with Pawlenty, but I think he’s got this one right.  The Attorney General should have acted on her pledge to uphold the Constitution and sued on behalf of the Governor and every other Minnesota citizen.

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