Madigan Urged to Challenge New Health Care Mandate in Court

White House says ‘bring it on,’ health care suit will fail

Tom Kocal

(March 26, 2010) The minute President Obama signed the Health Care Law on March 23, fourteen state attorneys general filed papers in federal court challenging the constitutionality of the bill.

The new legislation requires all Americans to purchase health insurance whether they want it or not and whether they can afford it or not. Those who do not comply with the new mandate face federal tax penalties and possible imprisonment for tax evasion.

U.S. Congressman Don Manzullo (R-16, IL) joined several Illinois Congressional colleagues Tuesday in urging Illinois Attorney General Lisa Madigan to join the now-15 other state attorneys general in challenging whether the new federal health care mandate is constitutional. A 16th state, Virginia, was the first state to file suit. But it has not joined the bigger lawsuit, which up to 22 other states so far are also considering.

“This is the first time the federal government has required Americans to buy a product or face fines and possible imprisonment, and it’s blatantly unconstitutional,” Manzullo stated in a press release. “I urge Attorney General Madigan to join the other states in challenging this mandate on behalf of the people of Illinois. At a time when Illinois schools are laying off thousands of teachers to deal with the state’s $12 billion budget hole, this bill would add more than $1 billion in extra Medicaid costs to the state’s obligations. It’s a disaster for the people of Illinois, and it needs to be struck down in the courts so we can focus on real reform that makes health care more affordable and accessible to Americans.”

The letter to Madigan was also signed by U.S. Reps. Aaron Schock, Peter Roskam, Judy Biggert, John Shimkus and Tim Johnson, all of Illinois. (To read the letter, visit http://manzullo.house.gov/UploadedFiles/health_care_10_letter_to_AG.pdf)

White House says resistance is futile

The White House says it is not concerned that 16 state attorneys general are suing to overturn the massive health care law, and there are some legal “experts” that agree the effort is futile.

The lawsuit, filed in federal court just seven minutes after President Obama signed the 10-year, $938 billion bill that was approved by the House of Representatives late Sunday night, March 21, is just another aspect of the philosophical conflict and political rancor that has surrounded it the past year.

Florida Attorney General Bill McCollum, who initially pursued the effort to file suit, is a Republican running for governor, and has been talking about suing to overturn the bill since December. His two-pronged argument against the law is the same as the other states: Congress doesn’t have the constitutional right to force people to get health coverage, and the federal government is violating the Constitution by forcing a mandate on the states without providing resources to pay for it.

White House spokesmen and Democratic leadership have cited similar suits filed over Social Security and the Voting Rights Act when those were passed. “To [the legal challenge], I say, ‘Bring it on,’” said White House Domestic Policy Chief Melody Barnes, according to several on-line news reports. “If you want to look in the face of a parent whose child now has health care insurance and say we’re repealing that, go right ahead.”

To date, all the attorneys general that have joined the suit are Republican, except James “Buddy” Caldwell of Louisiana, a Democrat, who said he signed on because Republican Gov. Bobby Jindal asked him to, and he felt the effort had merit.

More states may join the multi-state suit, while others are looking at other ways to avoid participating, like passing legislation to block requirements in the bill. Others say there is no reason to spend taxpayer money to join the suit, when it’s going to be litigated anyway.

McCollum said he predicts his suit will eventually end up before the U.S. Supreme Court. The health care bill “is not lawful,” he said. “It may have passed Congress, but there are three branches of government.”

Obama’s confident

On March 25 at the University of Iowa, President Obama addressed an exuberant crowd on the benefits of the new bill. Taken from a transcript of Obama’s speech, his optimism that conservative efforts to repeal the bill will be unsuccessful was apparent.

“Over the last year, there’s been a lot of misinformation spread about health care reform. There’s been plenty of fear-mongering, plenty of overheated rhetoric. You turn on the news, you’ll see the same folks are still shouting about there’s going to be an end of the world because this bill passed. I’m not exaggerating. Leaders of the Republican Party, they called the passage of this bill ‘Armageddon.’ ‘End of freedom as we know it.’

“This is the reform that some folks in Washington are still hollering about, still shouting about . . . now that we passed it, they’re already promising to repeal it. They’re actually going to run on a platform of repeal in November. You’ve been hearing that. And my attitude is: Go for it.”

Throughout the transcript, there was no mention of the Constitution, the 10th Amendment, or the reason that the suits are being filed - challenging the constitutionality of the bill.

Others in Washington share the same optimism. In a fund-raising newsletter from U.S. Senator Dick Durbin, he called the passing of the health care bill “the most sweeping domestic legislation in more than a generation” . . . a “victory for Illinois families.”

He goes on to say, “Republicans are gearing up for the war over quality, affordable health care coverage in the Senate. The GOP is going to do everything it can to kill this landmark legislation.”

Durbin claims that Republican Congressman Mark Kirk has taken more than $1.3 million in contributions from the health care lobby, and has already promised conservative voters at a “closed-door fundraiser” that he will “lead the effort” to repeal health care reform if he gets to the Senate. “Mark Kirk appears to be more interested in opposing President Obama at every turn than in doing what is right for Illinois families,” Durbin stated.

Again, not a word about challenging the bill’s constitutionality.

Constitutional interpretations

The lawsuit claims the health care bill violates the 10th Amendment, which says the federal government has no authority beyond the powers granted to it under the Constitution, by forcing the states to carry out its provisions but not reimbursing them for the costs.

But the Constitutional debate will rage on, as some constitutional law professors say the suit is just political posturing, due to the fact that this is the first time in U.S. history that a law of this magnitude and cost was passed without bipartisan support. The 219 House votes cast to pass the bill were all Democrats.

Other experts dispute that characterization, saying states will have to cut programs to make up for increased Medicaid costs under the overhaul. Their argument isn’t regarding the details of health care reform. They say the federal government went too far with unfunded federal mandates and exceeded their power under the Constitution.

The bill, which starts in six months, compels health insurance companies to keep young adults as beneficiaries on their parents’ plans until they turn 26. Other changes will not begin until 2014.

That’s when most Americans will be required to carry health insurance — either through an employer or government program, or by buying it themselves. In order to keep track of these requirements, the bill also calls for up to 16,500 new IRS agents to be hired to monitor compliance with this new mandate and enforce penalties against American taxpayers.

For some, it is this type of “job creation” that many citizens are against, as well as the reason why the constitutionality of the bill is being questioned.

State sovereignty or federal rule?

Debbie Morgan, www.TakeBackWashington.com, wrote on March 26 in an on-line article that when the subject of the Tenth Amendment has been raised in the past, some have said, “Oh, that will never work.” She states that since its passage, many States have tried to invoke their Tenth Amendment rights on several occasions. The largest combined effort, before now, was during the Civil War, when eleven states sought to secede from the United States.

“Interestingly enough, the last time people got truly fired up about their States rights was during the Roosevelt Administration’s ‘New Deal.’ Why do we have such a magnificent amendment to protect the states if we are not going to use it?”, Morgan said.

The February 2008 Congressional Research Service (CRS) Report for Congress, after quoting the Tenth Amendment, states, “While this language would appear to represent one of the most clear examples of a federalist principle in the Constitution, it has not had a significant impact in limiting federal powers. Initially, the Supreme Court interpreted the Tenth Amendment to have substantive content, so that certain ‘core’ state functions would be beyond the authority of the federal government to regulate.”

“Yet, in the past, as now, the Federal Government continues to take what it wants, expecting the states to bow down in servitude,” Morgan commented.

“Federal legislators, derelict in their duties, still see the Tenth Amendment as very vague and pass laws they are not truly authorized to pass. The Preamble to the Bill of Rights expressly states it’s purpose, ‘. . . the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added . . .’ Since the Federal government overlooks this, I propose that, for clarity, it would be prudent to turn to the state-level debates that ensued during the formation of the State’s Rights Amendment . . . at the time, eight states proposed clarification for the Tenth Amendment. It is interesting that all these states were clear about not allowing the Federal Government any extra flexibility from its Constitutional boundaries.”

Of those, a few stand out:

From New York:

“That the Powers of the Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same . . .”

From North Carolina:

“That those clauses which declare that Congress shall not exercise certain powers, be not interpreted in any manner whatsoever to extend the powers of Congress . . .”

From Pennsylvania:

“That the sovereignty, freedom and independency of the several states shall be retained . . .”

James Madison, one of our Founding Fathers and chief author of our Constitution, made several defining statements about the States and government. This one from Federalist Paper #45 stands out:

“The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.”

“There are more references, to be sure,” Morgan said. “It is clear by the above exactly what our legislators at the time meant by the Tenth Amendment . . . the individual States will, indeed, keep their sovereignty. The Federal Government will be limited from over-reaching its bounds and converting the united States in to a dictatorial government under the Federal government. I heard someone say, and it makes sense, that our Founding Fathers had just fought a war to win our country’s freedom from a tyrannical government (England) so why would they ‘create’ a government with the same agenda? Why would they ‘win’ their freedom just to give it up, again, to a central power?”

Montana Governor Brian Schweitzer’s stand is clear, “The Federal Government says we want to be your daddy. We want to tell you how to live your life. That’s where we draw the line and say, whoa, not here in Montana.” It is evident that other states are drawing their proverbial “line in the sand,” as well.

Whether or not the proverbial “line in the sand” is drawn by Illinois Attorney General Madigan remains to be seen.