13 AGs threaten suit over health care

Republican attorneys general in 13 states say congressional leaders must remove Nebraska's political deal from the federal health care reform bill or face legal action, according to a letter provided to The Associated Press Wednesday.

"We believe this provision is constitutionally flawed," South Carolina Attorney General Henry McMaster and the 12 other attorneys general wrote in the letter to be sent Wednesday night to House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid.

"As chief legal officers of our states we are contemplating a legal challenge to this provision and we ask you to take action to render this challenge unnecessary by striking that provision," they wrote....

McMaster says if the bill goes through to final approval with the benefit to Nebraska, taxpayers in the other 49 states will have to pay for it.

Meanwhile, Nelson is taking his message on health care reform directly to his constituents. In a television ad beginning during Wednesday night's Nebraska-Arizona Holiday Bowl football game, the Democrat says he stuck by his principles throughout the debate and doesn't want Nebraskans to be confused on his position.

ISSUE: Mandating that individuals must obtain health insurance, and imposing any penalty—civil or criminal—on any private citizen for not purchasing health insurance is not authorized by any provision of the U.S. Constitution. As such, it is unconstitutional, and should not survive a court challenge on that issue. Supporters of the legislation have incorrectly contended that the legal justification for the mandate is authorized by the Commerce Clause, the General Welfare Clause, or the Taxing and Spending Clause. Given that this mandate provision is essential to Obamacare; its unconstitutionality renders the entire program untenable.

* The individual mandate is unconstitutional unless there is a specific constitutional provision that authorizes it. The federal government is a government of limited jurisdiction. It has only enumerated powers. Therefore unless a specific provision of the Constitution empowers a particular law, then that law is unconstitutional. There is no such authorization for the mandate.

* The individual mandate is not authorized by the Commerce Clause. Most of those advocating the Democrats’ bill say that Congress can pass this legislation pursuant to its power to regulate interstate commerce. That argument is incorrect, because there is no interstate commerce when private citizens do not purchase health insurance.

* The Commerce Clause only covers matters where citizens engage in economic activity. The last time the Supreme Court struck down a law for violating the Commerce Clause, in United States v. Morrison (2000), the Court did so on the grounds that the activity in question was not an economic activity.

* The Commerce Clause only extends to persons or organizations voluntarily engaging in commercial activity. Government can only regulate economic action; it cannot coerce action on the part of private citizens who do not wish to participate in commerce. In the most expansive case for Congress’ power to regulate interstate commerce, Wickard v. Filburn (1942), the Court upheld the agricultural regulation in question against a wheat farmer who earned his entire living from growing and selling wheat, making him a willing participant in interstate commerce.

* The Commerce Clause requires an actual economic effect, not merely a congressional finding of an economic effect. When the Court struck down the Violence Against Women Act in United States v. Morrison (2000), the Court noted that although the statute made numerous findings regarding the link between such violence and interstate commerce, it held that those findings did not actually establish an economic effect. Therefore the various interstate-commerce findings in the Senate version of the “Obamacare” legislation do not make the bill constitutional.

* The individual mandate is not authorized under the General Welfare Clause. The Supreme Court made clear in United States v. Butler (1936) and Helvering v. Davis (1937) that the General Welfare Clause only applies to congressional spending. It applies to money going out from the government; it does not confer or concern any government power to take in money, such as would happen with the individual mandate. Therefore the mandate is outside the scope of the General Welfare Clause.

* The individual mandate is not authorized under the Taxing and Spending Clause or Income Tax. The Constitution only allows certain types of taxation from the federal government.

* The Article I Taxing and Spending Clause permits duties, imposts, excises and capitation taxes — duties, imposts and excises are taxes on purchases. A capitation tax is a tax that every person must pay, and the Constitution’s apportionment rule requires that every person in each state must pay exactly the same amount. The Obamacare mandate is imposed on people who are making no purchase, and is a tax that some people in a state would pay, but others do not.

* The Sixteenth Amendment allows an income tax. An income tax is imposed only on earnings, but people would have to pay this tax even if they had no income.

Therefore it cannot be any of these constitutionally-permitted taxes.

* The individual mandate is unconstitutional regardless of whether there are criminal penalties involved. There is no distinction between criminal and civil penalties for determining the constitutionality of legislation, and the penalty imposed in Wickard v. Filburn (1942) was not a criminal penalty. Therefore even if the criminal sanctions were removed from the legislation, the imposition of any penalty or consequence for not purchasing insurance renders the mandate unconstitutional.

* The individual mandate cannot be properly compared to requiring auto insurance. President Obama said in a Nov. 9 interview on ABC television that requiring people to buy health insurance and penalizing those that do not buy is acceptable because people are required to buy car insurance. That statement is untrue.

* Only state governments can require people to get car insurance. While the federal government is limited to the powers enumerated in the Constitution, the states have a general police power. The police power enables state governments to pass laws for public safety and public health. The federal government has no general police power, and therefore could not require car insurance.

* States do not require people to purchase car insurance. Driving a car is a privilege, not a right. States require people to get insurance only as a condition for those people who voluntarily choose to drive on the public roads. If a person chooses to use public transportation, or use a bicycle instead of a car, or operate a car only on their own property, they are not required to have car insurance, and cannot be penalized for lacking insurance.

See: http://teapartypatriots.org/BlogPostView.aspx?id=125d1e02-f649-4931-b468-cdd8dfcc2921

I believe they are using the spending power, (described in the following SCOTUS opinions.) The key is that the states may refuse to participate in the federal program (Medicaid.)

Federal spending power
Justice O’Connor in New York v. United States 505 US 144 (1992) discussed methods by which Congress could “encourage” a State to regulate according to its wishes. Along with “cooperative federalism,” Congress may employ the “spending power” to achieve its aims:
“...the Constitution authorizes Congress “to pay the Debts and provide for the . . . general Welfare of the United States.” Art. I, 8, cl. 1. As conventional notions of the proper objects of government spending have changed over the years, so has the ability of Congress to “fix the terms on which it shall disburse federal money to the States...”
“...’Congress may attach conditions on the receipt of federal funds.’ South Dakota v. Dole, 483 U. S., at 206. Such conditions must (among other requirements) bear some relationship to the purpose of the federal spending, id., at 207-208, and n. 3; otherwise, of course, the spending power could render academic the Constitution’s other grants and limits of federal authority. Where the recipient of federal funds is a State, as is not unusual today, the conditions attached to the funds by Congress may influence a State’s legislative choices. See Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 Colum. L. Rev. 847, 874-881 (1979). Dole was one such case: The Court found no constitutional flaw in a federal statute directing the Secretary of Transportation to withhold federal highway funds from States failing to adopt Congress’ choice of a minimum drinking age. Similar examples abound. See, e. g., Fullilove v. Klutznick, 448 U.S. 448, 478-480 (1980); Massachusetts v. United States, 435 U.S. 444, 461-462 (1978); Lau v. Nichols, 414 U.S. 563, 568-569 (1974); Oklahoma v. Civil Service Comm’n, 330 U.S. 127, 142-144 (1947).”
..”if a State’s citizens view federal policy as sufficiently contrary to local interests, they may elect to decline a federal grant...”

In South Dakota v. Dole, 483 U.S. 203 (1987), Chief Justice Rehnquist outlined the limitations upon Congressional conditions imposed upon State receipt of funds under the federal “spending power”:
“...The breadth of this power was made clear in United States v. Butler, 297 U.S. 1, 66 (1936), where the Court, resolving a longstanding debate over the scope of the Spending Clause, determined that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.” Thus, objectives not thought to be within Article I’s “enumerated legislative fields,” id., at 65, may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.
“The spending power is of course not unlimited, Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, and n. 13 (1981), but is instead subject to several general restrictions articulated in our cases. The first of these limitations is derived from the language of the Constitution itself: the exercise of the spending power must be in pursuit of “the general welfare.” See Helvering v. Davis, 301 U.S. 619, 640-641 (1937); United States v. Butler, supra, at 65. In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress. Helvering v. Davis, supra, at 640, 645. Second, we have required that if Congress desires to condition the States’ receipt of federal funds, it “must do so unambiguously . . ., enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.” Pennhurst State School and Hospital v. Halderman, supra, at 17. Third, our cases have suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated “to the federal interest in particular national projects or programs.” Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality opinion). See also Ivanhoe Irrigation Dist. v. McCracken, supra, at 295, (”[T]he Federal Government may establish and impose reasonable conditions relevant to federal interest in the project and to the over-all objectives thereof”). Finally, we have noted that other constitutional provisions may provide an independent bar to the conditional grant of federal funds. Lawrence County v. Lead-Deadwood School Dist., 469 U.S. 256, 269-270 (1985); Buckley v. Valeo, 424 U.S. 1, 91 (1976) (per curiam); King v. Smith, 392 U.S. 309, 333, n. 34 (1968).”
...”These cases establish that the “independent constitutional bar” limitation on the spending power is not, as petitioner suggests, a prohibition on the indirect achievement of objectives which Congress is not empowered to achieve directly. Instead, we think that the language in our earlier opinions stands for the unexceptionable proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional. Thus, for example, a grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual punishment would be an illegitimate exercise of the Congress’ broad spending power....”

[Note: An example of such a program is CZMA (Coastal Zone Management Act) or CZARA. (Coastal Zone Reauthorization Amendment of 1990.) As explained in Secretary of Interior v. California, 464 U.S. 312 (1984):
“CZMA was enacted in 1972 to encourage the prudent management and conservation of natural resources in the coastal zone. Congress found that the ‘increasing and competing demands upon the lands and waters of our coastal zone’ had ‘resulted in the loss of living marine resources, wildlife, nutrient-rich areas, permanent and adverse changes to ecological systems, decreasing open space for public use, and shoreline erosion.’ 16 U.S.C. 1451(c) (1982 ed.). Accordingly, Congress declared a national policy to protect the coastal zone, to encourage the States to develop coastal zone management programs, to promote cooperation between federal and state agencies engaged in programs affecting the coastal zone, and to encourage broad participation in the development of coastal zone management programs. 16 U.S.C. 1452 (1982 ed.).
“Through a system of grants and other incentives, CZMA encourages each coastal State to develop a coastal management plan. Further grants and other benefits are made available to a coastal State after its management plan receives federal approval from the Secretary of Commerce. To obtain such approval a state plan must adequately consider the ‘national interest’ and ‘the views of Federal agencies principally affected by such program.’ 16 U.S.C. 1455(c)(8), 1456(b) (1982 ed.).”]

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