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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.

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.