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Minnesotans have the right to govern our individual affairs

Last week, Minnesota Attorney General Lori Swanson filed a petition asking a court to order the funding of certain "essential" services in the event of a government shutdown. In doing so, Swanson correctly noted that her "primary duty" is to enforce and uphold the federal and Minnesota constitutions.

Unfortunately, she has failed in that duty to stand up for the constitutional rights of Minnesotans. This failure is demonstrated by some of the very arguments Swanson made in support of her petition and her continued refusal to defend Minnesotans against the 2010 federal health-care law.

The Minnesota Constitution prohibits the payment of money from the state treasury unless appropriated by law. This provision protects our fundamental right as Minnesota citizens to hold our elected representatives accountable for how they spend our tax dollars.

In her petition, however, Swanson argues that other provisions of the Minnesota constitution require certain core government functions to continue even when the legislative process fails to fund them. This is a controversial but defensible position that has drawn criticism from Republican and Democratic legislators alike, but also has been advocated in the past by Republicans and Democrats and adopted by prior courts.


Arguments threaten our rights
Unfortunately, Swanson went even further, making several legal arguments that threaten our rights to govern ourselves through our elected representatives.

Swanson's petition invokes the supremacy clause of the U.S. Constitution to argue that Minnesota is required to fund certain programs because of "congressional mandate." But she neglects the foundational legal principle that Minnesota is a sovereign state that generally cannot be compelled by Congress to enforce a federal program.

Minnesota is not required to forfeit its judgment to the federal government. The attorney general should defend Minnesota's right to make its own decisions, not give up those rights.

Swanson also raises the stunning argument that a court can unilaterally order a tax increase, and she asks the court to allow each government agency to decide for itself which functions it will consider essential during a shutdown. These arguments undermine our legal rights as Minnesota citizens to govern our state through our elected representatives.

The health-care issue
Swanson's failure to uphold constitutional protections is further demonstrated by her inaction in the federal health-care litigation.

In federal courts around the country, 28 other states are challenging the constitutionality of the Obama administration's 2010 health-care overhaul, which claims unprecedented power for the federal government and is the only federal law ever to be challenged in court by a majority of the states. It oversteps the limits on federal power and violates the constitutional rights of Minnesotans in two significant ways.

First, it imposes a mandate upon each individual to purchase health insurance, the first time that Congress has ever attempted to force individuals to purchase a product as a condition of living in the United States.

Second, it requires Minnesota to make costly changes to its health-care programs or lose billions of dollars annually in Medicaid funds. This is an egregious penalty that goes beyond Congress' power to give limited incentives to encourage states to agree to federal standards.

If our federal government has the power to issue a sweeping regulation like the individual mandate, very few, if any, limits remain to the federal government's power. And giving the federal government the power to withhold billions of Medicaid dollars in order to control Minnesota's state budget abridges our right to hold our state elected officials accountable for that budget.

Limited, enumerated powers
The Obama health-care law thus violates the fundamental constitutional principles that our federal government has limited, enumerated powers and that all other powers are reserved for the states and the people.

Swanson could easily stand up for these principles by simply joining the 26 other states that have banded together in a case currently before the federal appeals court in Atlanta. She has refused to do so, and actually wrote a letter defending the federal law.

Minnesotans have the right to govern our individual affairs and to govern our state through our elected Legislature, rather than being told what to do by Congress and Washington bureaucrats. Unfortunately, Swanson is failing to defend these rights.

Harry Niska is an attorney in private practice in Minneapolis.

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Comments (27)

Harry:

Indeed, a needed message well stated.

The primary argument of our founding fathers against the authority of the British Parliament and monarchy was a suspicion of centralized political power in faraway places.

235 years later, will we duplicate that which we fought to escape?

What's wrong with this argument is that the separation of powers forbids the judiciary from intervening in disputes between the other two branches of government. It can't take sides. But what it can do is ensure that the safety and security of the public are protected, however ineffective the other two branches are at doing the job we the people through our constitution have assigned them.

So AG Swanson will win, and the dissident legislators who seem whose job is to legislate, not litigate will lose, and that's the right decision for the courts to make.

"The primary argument of our founding fathers against the authority of the British Parliament and monarchy was a suspicion of centralized political power in faraway places."

St. Paul isn't all that far. Among other things, some of founders complained about lack of representation in Parliament. That's an issue we resolved in America quite some time ago.

"First, it imposes a mandate upon each individual to purchase health insurance, the first time that Congress has ever attempted to force individuals to purchase a product as a condition of living in the United States."

There is nothing in my copy of the constitution that says Congress is forbidden to do things for the first time. The fact is, Congress forces us to do a lot of things, put money into Social Security and Medicare, and to pay taxes generally. That these are lawful exercises of constitutional authority have not been widely disputed in the past, and really shouldn't be called into question now.

"Second, it requires Minnesota to make costly changes to its health-care programs or lose billions of dollars annually in Medicaid funds. This is an egregious penalty that goes beyond Congress' power to give limited incentives to encourage states to agree to federal standards."

If the exercise of Congressional authority is lawful under the interstate commerce clause, then under the supremacy clause, the cost to states is irrelevant. Again, the constitution says nothing about how expensive or inexpensive state government should be. Actually, it has very little at all to say on the topic of how state governments should operate. As it happens, the creators of the Affordable Care Act were very in recognizing state's rights when they drafted the law. It does not tell the states what to do, something which would raise constitutional issues.

Mr. Niska, if I'm following your line of reasoning, then beyond states rights will come county rights, beyond county rights will come township rights and so on until we get to individual rights which it seems to me are the constitutional rights and we've come full circle to the safety and protection of the citizenry.

I'm not buying your argument against AG Swanson that you've found the exit ramp to a circular argument. Your language while clever at times just doesn't pass the smell test.

Jeff Wilfahrt, Rosemount, MN

"The Obama health-care law thus violates the fundamental constitutional principles that our federal government has limited, enumerated powers and that all other powers are reserved for the states and the people."

The writer is engaging in a common bit of legalistic sleight of hand here. He blithely assumes that the enumerated powers are limited and hoping we won't notice. There is no language either in Article I of the constitution or the tenth amendment to justify that assumption. The word I learned in 9th grade civics class describing Congressional Article I powers is "plenary", that is according to Merriam Webster, "complete in every respect".

There are, I suppose, limits to Congressional powers. Congress, theoretically perhaps, could define interstate commerce just too broadly. But it's very hard to argue that Congressional legislation with regard to the health care industry raises that issue. Health care is big business, both nationally and internationally. What they do is unquestionably interstate commerce, and therefore subject to regulation by Congress under Article I.

Mr. Niska has rendered a judgement on a Constitutional issue that is exceedingly complex, sophisticated, and has varied precedence. His conlusions are very premature (this issue will be debated by several high courts including possibly SCOTUS).

Moreover, this has now spilled out of the judicial arena to the political one (the 26 AGs he refers to are all transparently partisan players).

While he too is an attorney, I sincerely believe his premature conclusions are well above his pay grade.

Mr. Niska's problem is one that a lot of lawyers have. He mistakes a really detailed and precise understanding of the nature of a specific tree for an awareness of the forest.

This is something I am fond of saying and probably say way too much. Never take legal advice from a politician, and never, ever take political advice from a lawyer.

Mr. Niska:

Is compulsory enrollment in and payment for Medicare unconstitutional as well, in your opinion? If not, why not?

(#3):

The centralized government in faraway places, to which I and the author referred, conducts their business in Washington D.C. They don't meet in St. Paul.

Yes, we resolved the representation issue some time ago, but it seems we will need to reassert that, as those politicians in Washington D.C. are conducting Minnesota business, clearly beyond the scope of their power. A three-judge panel of the 11th U.S. Circuit Court of Appeals will weigh in on the question. If there is a precedent in more than two centuries in which the Supreme Court has upheld a law that forces individuals to purchase a private good or service, I am not aware of it. Precedence is important in law.

If the mandate is upheld, what will limit congress from more of the same? It seems fine when you are aligned with the agenda, otherwise, not so much. When you find yourself or your agenda under the bus, remember that you drove that bus into town.

See the parallel with respect to the British Parliament and monarchy?

According to Mr. Niska's argument, it would appear necessary, even patriotic, to throw open the state's prison doors.

When the events leading up to the Revolutionary War occurred, traveling back and forth between the colonies meant a month long perilous sea voyage on which people routinely died of disease. There was no email, no telephones, no telegraphs. They didn't have television back then. Members of parliament were elected by just the few voters who had the vote. They had corrupt Burroughs where effectively MP's were selected by rich landowners, and what few voters there were had no rights at all.

This is nothing like today. Senators and Congressmen are elected. They routinely meet with as many constituents as they can, and that's a lot. For Minnesotans it's a 3 hour flight to Washington, D.C., and for folks who choose to take it, scurvy is rarely a concern.

Concerning precedents. They are important. I am sure Mr. Niska could cite to you any number of precedents that take an incredibly expansive view of Congress' powers under Article I. But that's true only of precedents that exist. Precedents that do not exist have no power to influence judicial proceedings at all.

I would find arguments against the Federal Government overstepping its bounds to be far more convincing if those making sweeping statements (which run against what has long been settled constitutional law),...

Would simply insert the phrase, "in my opinion."

The fact that such an acknowledgment is missing means that the ability to rationally consider other points of view is missing from the personality of the person making such sweeping statements,...

Which renders their arguments not "reasoned" or "logical" but rather, "ideologically-blinded," and "demagogic,"

And, of course, not convincing in the least.

My own sons believed, at twelve years old, that the complete absence of rules and the anarchy that would result would be a perfect, happy world.

Then they grew up.

In my opinion, those who would pursue "libertarian," "individual rights trump all other considerations" arguments against government at any and every level are demonstrating, quite clearly, that they are, for whatever reasons, stuck in the adolescent delusion that anarchy would produce a happy and desirable life for them and for society in general.

It would not.

Mr. Hamilton asks: "Is compulsory enrollment in and payment for Medicare unconstitutional as well, in your opinion? If not, why not?"

Congress has the power to tax and since Medicare is paid for by a payroll tax, it is not unconstitutional.

However, supposedly we all will pay for Obamacare by buying a private insurance policy. That is not a tax, that is a congressional mandate to buy something and the courts have already hinted that it won't pass muster. Otherwise, the argument goes, that could enable them to force us to buy other things in other private markets as well.

Perhaps enforcing the Second Amendment would mean that all citizens were mandated to buy a weapon like they do in Switzerland. I doubt if the Left would sit still for that.

This article made me chuckle. Previous posters hit it right on the head when they talked about trees and forests and why lawyers shouldn't be trusted for political advice.

This article reminded me of a particular individual I met in grad school who was so overly confident in their knowledge of biology (because they were a grad student, of course!) that they would ask questions simply to show you how smart they must be by answering those questions themselves. I see in the author of this article a similar trait, a budding professional so dazzled by their own brilliance that they must pronounce their fledgling wisdom upon the world. Nevermind that such nuggets of "wisdom" are old news.

@Mr. Tester: My question was not directed at the question of Medicare payroll taxes, but the compulsory enrollment of all of those age 65 or older in the program and the compulsory payment of the monthly Medicare premium. Still waiting for Mr. Niska's response.

I have been rolling these ideas in my mind a lot today. I get a kick out of this notion put forth around here that Congress and the courts are not allowed to do things for the first time. What would happen if that principle were extended? To our nation? To our species?

@ #14 Re: 2nd Amendment mandate-

The Militia Acts of 1792 required all male US citizens between the ages of 18 and 45 to be registered and enrolled with their local militia. It also required that:

"within six months thereafter, [he must] provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball, and shall appear so armed, accoutred and provided, when called out to exercise or into service."

Signed into US Law by President George Washington on May 8th, 1792. This was the law of the land, allowing for advances in weapons technology, until the National Guard was established in 1903.

Don't blame lawyers for this kind of mindless drivel. I think most lawyers would be quick to recognize the flawed reasoning here.

Dennis, it is a tax because you don't have to buy insurance - you can pay a fine (i.e. a tax) instead. Buying the insurance is like taking out a home mortgage or any other deduction you use to reduce tax liability.

"I see in the author of this article a similar trait, a budding professional so dazzled by their own brilliance that they must pronounce their fledgling wisdom upon the world."

I do think the author of the piece is a talented young attorney. I wish I had his rhetorical skills, which will serve him well in his chosen profession. But the ability to argue a case well, doesn't really make the case better if it's bad to begin with. And Mr. Niska's case is pretty bad here.

Many folks have talked about the value and importance of judicial restraint, of not legislating from the bench. What often strikes me is that these same people so often do not seem to understand the power of their arguments and the extent to which they are profoundly right. This is such an instance. Shouldn't health care policy be determined by the branches of government to which policy decisions have been assigned by the constitution? Does it really make any kind of sense at all to turn over health care policy to 9 unelected justices with no specific qualifications or expertise on the subject? Who don't have the resources or the ability to craft a policy to replace the health care policy they may choose to strike down?

There are lots of very metaphysical and otherwise high falutin' arguments why judges shouldn't legislate from the bench. But for me, the most compelling reason of all, is that they are just no good at it.

@#20
I don't disagree that the author is a smart cookie. On the contrary, he seems to be rather accomplished. However, the fact that after reading this, I was compelled to look him up to see if he really was as young as I figured he was is telling. The problem is that the argument, while pretty, is not sound, and isn't the first time I've heard it. Interestingly, others I've talked to that hold the author's views on this particular subject will directly contradict themselves defending other legislation and judicial decisions.

As the proceedings in Judge Gearin's court tend to prove, sometimes young lawyers have a better understanding of the statutes than they do of the law.

"There is nothing in my copy of the constitution that says Congress is forbidden to do things for the first time. The fact is, Congress forces us to do a lot of things, put money into Social Security and Medicare, and to pay taxes generally. That these are lawful exercises of constitutional authority have not been widely disputed in the past, and really shouldn't be called into question now."

Actually the Constitution very clearly lays out the role of the Federal Government. This statement clearly displays a fundamental difference between conservatives and liberals. Where liberals are willing to accept large unchallenged expansions of government as long as it fits their agenda. Conservatives are not willing to accept these changes and are willing to fight to keep the personal liberties that we feel the Constitution was designed to afford us as Americans.

"If the exercise of Congressional authority is lawful under the interstate commerce clause, then under the supremacy clause, the cost to states is irrelevant. Again, the constitution says nothing about how expensive or inexpensive state government should be. Actually, it has very little at all to say on the topic of how state governments should operate. As it happens, the creators of the Affordable Care Act were very in recognizing state's rights when they drafted the law. It does not tell the states what to do, something which would raise constitutional issues."

This statement is troubling on so many levels. Do you REALLY not care about the cost that the federal government is putting on your state? That is mind boggling!

To call this law the Affordable Care Act couldn't possibly be more misleading. The law does nothing to address the real problem that EVERYONE can agree on, health care has become way too expensive and simply unaffordable. By you or now by the government, which by the way doesn't have any money without us the taxpayer.

"Conservatives are not willing to accept these changes and are willing to fight to keep the personal liberties that we feel the Constitution was designed to afford us as Americans."

The constitution is a text not a set of feelings. While the document has been subject to substantial revisions, the text pertaining to interstate commerce has remained unchanged since 1787.

"Do you REALLY not care about the cost that the federal government is putting on your state?"

I have a variety of concerns about policy. It's the function of elections and the officials to address them. They should do so according to their best judgment within the framework of what the constitution is, not what some of us feel it ought to be.

I learned what I know about the government, the constitution, and the law, and a lot of things my teacher taught have stayed with me over the years.

What he said was that what we have a right to isn't good government or bad government, safe government or risky government, or government that agrees with us, the right we have is to constitutional government, and once we have that we are pretty much on our own.

There are many disagreements in our political discourse. There are risks and dangers when we address problems, and risks and dangers when we don't. Nowhere in the constitution is there any guarantee that things will turn out all right. What the founders asked of us was to have faith in the political process that they created in the daring hope that things we would thrive as a nation beyond all dreams any of them could have had at the time. We mostly have. Maybe there are better alternatives to unruly and occasionally embarrassing electoral process. But I don't think rule by nine unelected justices who serve for life or as long as they keep their noses clean, is one of them.

"To call this law the Affordable Care Act couldn't possibly be more misleading. The law does nothing to address the real problem that EVERYONE can agree on, health care has become way too expensive and simply unaffordable. By you or now by the government, which by the way doesn't have any money without us the taxpayer."

This is to me the scary part of Mr. Niska's agreement. He doesn't like the law. He doesn't even like the title of the law. His policy judgement differs from the policy made collectively by the 536 people we elected and sent to Washington to make those judgment which they did after about 60 years of consideration which went into a lot of detail. Because those folks had the temerity to disagree with Mr. Niska, he wants to take one last shot, he wants to turn the decision over to 9 unelected judges, with no special expertise on the subject at all, whom he feels should never legislate from the bench, except in those cases where they will legislate in the way he, in his completely unelected judgment, thinks they should.

Somehow, and with all their many and manifold flaws, I have just a bit more confidence in the founders way of doing things than Mr. Niska's.

@#26
If I could simply give your post a thumbs-up, I would.