Tweedledum and Tweedledee
Agreed to have a battle;
For Tweedledum said Tweedledee
Had spoiled his nice new rattle.
Just then flew down a monstrous crow,
As black as a tar-barrel;
Which frightened both the heroes so,
They quite forgot their quarrel.*
And passed ObamaCare against the wishes of most Americans, in defiance of the Constitution, in a wholesale negation of individual rights. That is representative democracy in action. Hardly the leitmotif of a rights-protecting republic.
Tweedledum and Tweedledee, indeed. They were both holding that rattle in their tight little fists. The monstrous crow was…the Tea Party.
The pending initiatives over the constitutionality and legality of the Patient Protection and Affordable Care Act (PPACA Pub. L. No. 111-148), better known as ObamaCare, and signed into law by President Barack Obama on March 23, should make for an interesting spring, summer, fall and winter in 2010. It can take on the drama and perhaps heartbreak of Alfred the Great fighting the invasion of and occupation of Britain by the Danes, or of Washington’s victory over the British at Trenton and Princeton in 1776, or of a barroom brawl and melee, no last man standing but the bartender with his baseball bat, and all the felled participants bloodied and groaning.
Short of reading all the provisions and costs of the law, and delving into the details of its Senate-inspired companion (which is not receiving nearly as much attention), the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152), signed into law on March 30, I recommend Wikipedia’s précis of both laws. The second law is a product of reconciliation with the Senate version of the House’s.
But, as the federal government prepares to stonewall any action against ObamaCare, state or private, the question in everyone’s mind is: How successful will all those suits and actions be? ObamaCare specifically states that states may not contravene the individual mandate (formerly, the compulsory “public option”) or any other provision of the law, presumably basing that assertion on the supremacy and commerce clauses of the Constitution. If a state insists on the validity of its own conflicting statutes, ObamaCare stipulates that it must enact a companion law that complements the federal one and accomplishes the same thing, which is mandated health insurance, and establish its own bureaucracies to administer it. It allows no opting out by individuals or states. This is a claim of non-severability that binds the states as well as individuals to comply with the law.
Two state attorneys general, Robert Cordray of Ohio and Tom Miller of Iowa, are dismissive of other states’ suits against the government over ObamaCare.
Under long-settled Supreme Court precedents, Congress has ample power under the commerce clause of the Constitution to legislate on health care.
Congress has the authority to regulate anything that affects interstate commerce “among the several States.” This is bolstered by the supremacy clause, which explicitly makes the Constitution and the laws of the United States “the supreme Law of the Land” for all Americans. For Congress to have the power to pass this legislation, therefore, the health care problem need only affect interstate commerce. It clearly does.
One northern Virginia attorney concurs, and cites Justice Antonin Scalia’s five-year old endorsement of the federal government’s powers derived from the commerce clause:
The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even non-economic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.
The states will argue that the law is unconstitutional because it violates both the supremacy and commerce clauses. Virginia asserts not only that, but that if unconstitutionality is proven, state law -- in this instance, its recently enacted Health Care Freedom Act -- is consequently constitutional and sovereign. Virginia Attorney General Ken Cuccinelli first addressed the supremacy clause:
….[I]f a federal law is proved unconstitutional while a conflicting state law is constitutional, the state law will prevail. We in the attorney general's office feel that the new federal individual mandate — the requirement that everyone be forced to buy government-approved health insurance by 2014 or face fines — is unconstitutional.
And then the commerce clause:
It is unconstitutional because the federal government is claiming that the source of its power for imposing the mandate is the Constitution's "commerce clause," which gives the federal government the power to "regulate commerce among the several states …" We argue that if someone isn't buying insurance, then — by definition — he is not participating in commerce. How, then, can the government use the commerce clause to regulate non-commerce, i.e., regulating inactivity?
In my January 6th commentary, “States’ Rights: Dumb Show and Noise,” I noted that:
In the meantime, over two dozen states, also citing the Tenth Amendment, have drafted proposals, resolutions or amendments to their state constitutions that would nullify any federal health care legislation that may pass, because the power of Congress to enact such legislation is not enumerated. This movement smacks of secessionism.
If courts subsequently and consistently uphold the federal law for whatever illogical reason -- progressing from the initial suits to appeal, perhaps even up to the Supreme Court -- what alternatives would be left to the states but to submit? States would be faced with an unprecedented conundrum: submission to federal law, or secession (unprecedented, at least, since the Civil War and the civil rights movement era). What are the chances of secession? Virtually nil, because, as I pointed out in “Dumb Show and Noise,” most states are dependent on federal funds for a multitude of other government enterprises, including highway building and maintenance and healthcare. South Carolina Attorney General Henry McMaster discusses merely the healthcare part of that intractable issue:
Medicaid was originally designed to be a voluntary federal-state partnership, but this new health care law turns it into a compulsory, top-down federal program in which the discretion of the states is removed….A 61 percent increase in Medicaid enrollees will force the state to spend billions of dollars to hire and train new employees to comply and implement the expansion of the state Medicaid program under national health care….
Even if you believe that it has still has the legal option, South Carolina could not realistically withdraw from participating in Medicaid, because over the more than four decades of its existence, the state has become increasingly dependent on federal funds for its operation. Washington politicians know this, and use this undeniable fact to force states to comply with their will. This violates the core constitutional principle of federalism upon which this nation was founded. In so doing, the national health care law exceeds the powers of the United States and in a second way violates the Tenth Amendment.
So, the state has the power to tax South Carolinians to administer Medicaid, but the federal government hasn’t? Where is the voluntary role for individuals in that program? (Actually, the South Carolinian is being taxed twice: once by the federal government, and then by the state.)
The issue of the Tenth Amendment and states’ rights may be dismissed by any court. The list of state suits is likely to grow, as state attorneys general and governors absorb the implications of the law and the fiscal burdens it will impose on the states. What are the powers reserved to the states (or “to the people”) by the Tenth Amendment? It is curious that while states are bringing action against the federal government -- specifically against the Department of Health and Human Services, which is charged with administering ObamaCare -- citing a breach of the Amendment, state powers to regulate, control and mandate are also open to the question of their constitutionality. Myriad state laws contradict and violate the fundamental intention of the Constitution, which is to preserve and protect individual rights.
Only seven states have no personal income tax, except on dividends and income from interest. Five states have no corporate income tax, nor any sales tax. Numerous counties and municipalities impose their own sales taxes, in addition to licensing fees and various business taxes. Property and estate taxes exist in all states. States regulate insurance companies, practice eminent domain, and regulate alcohol sales and consumption, smoking, auto emissions, building standards, and so on. Where is the surcease of federal powers and those reserved to the states?
While Congress may have exceeded its enumerated powers, where is the check on state law? What are the restricting enumerated powers delegated to states? What prevents states from committing the same offense they charge the federal government of committing? Nothing.
One paragraph from the Case Law site points up this issue, argued by now-retired Supreme Court Justice Sandra Day O’Connor (not one of my favorite justices):
… [B]ecause the dispute involved the division of authority between federal and state governments, Justice O'Connor wrote for the Court, one could inquire whether Congress acted under a delegated power or one could ask whether Congress had invaded a state province protected by the Tenth Amendment. But, said the Justice, ''the two inquiries are mirror images of each other. If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.''
While the pot can call the kettle black, the kettle can call the pot black, as well. Briefly, the Constitution prohibits Congress from usurping state sovereignty. Yet, states may violate individual rights -- the sovereignty of an individual over his own life and property -- with impunity as long as Congress doesn’t first claim the prerogative.
In his statement about the unconstitutionality of ObamaCare, Virginia Attorney General Cuccinelli let drop one interesting piece of information:
To the second question, why states can mandate the purchase of auto insurance, but the federal government cannot mandate the purchase of health insurance: The federal government is subject to the constraints of the U.S. Constitution. The Founding Fathers laid out specific and limited powers for the federal government and reserved the rest "to the States respectively, or to the people." In other words, the states have powers the federal government does not. For example, the states do have the authority the federal government lacks to impose a health insurance mandate. [Italics mine.]
I have not seen this issue addressed elsewhere, not even by Judge Andrew Napolitano, who is even more voluble in his charges against Congress than any of the state attorneys general. He has noted:
"The Constitution does not authorize the Congress to regulate the state governments," Napolitano says. "Nevertheless, in this piece of legislation, the Congress has told the state governments that they must modify their regulation of certain areas of healthcare, they must surrender their regulation of other areas of healthcare, and they must spend state taxpayer-generated dollars in a way that the Congress wants it done.
Napolitano tells Newsmax that the longstanding precedent of state regulation of the healthcare industry makes the new federal regulations that much more problematic.
"The Supreme Court has ruled that in areas of human behavior that are not delegated to the Congress in the Constitution, and that have been traditionally regulated by the states, the Congress can't simply move in there," Napolitano says. "And the states for 230 years have had near exclusive regulation over the delivery of healthcare. The states license hospitals. The states license medications. The states license healthcare providers whether they're doctors, nurses, or pharmacists. The feds have had nothing to do with it….”
But what logical difference would it make to an individual if his state government may enact a rights-violating law that Congress may not, one having the same end and which is equally pernicious? One must question the scope and foundations of the moral reasoning of the more prominent opponents of ObamaCare.
The suits being filed by the state attorneys general, while employing some startling language, do not expressly promote individual rights, do not recognize that men own their own lives and property, and do not assert that individual rights are inviolate regardless of the proximity of a government. They are little more than claims of power-wielding jurisdictional turf against a greater power-wielding entity.
Given the Constitution-scrapping precedents set by all three branches of the federal government over more than a century, these claims are destined to fail. The federal government is the bartender with the baseball bat.
*I. Opie and P. Opie, The Oxford Dictionary of Nursery Rhymes (Oxford University Press, 1951, 2nd edition., 1997), p. 418.