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Minnesota attorney general should reconsider and join challenge to Obama health-care law

In November, the U.S. Supreme Court announced that it will take up arguably the most significant case about the powers of the federal government in recent history, agreeing to review the ruling of the Eleventh Circuit appeals court striking down a key portion of President Barack Obama’s sweeping 2010 federal health-care law.

Twenty-eight states (including our neighbors Iowa, North Dakota, South Dakota and Wisconsin) have sued to strike down the law on the grounds that it oversteps the constitutional limits of the federal government, the first time that a majority of the states have ever challenged a federal law. The Supreme Court has allocated five-and-a-half hours over three days in March to hear oral arguments on the law’s constitutionality — the longest oral argument in recent Supreme Court history.

But despite the historical significance of this case and the grave constitutional questions raised by this law, Attorney General Lori Swanson — the elected official tasked with defending the constitutional rights of all Minnesotans — has declined to stand up for our rights. In fact, when asked to do so by then-Gov. Tim Pawlenty, Swanson wrote a letter concluding that the law was constitutional and even said she would defend it in court.

As I have written previously, Swanson ought to reconsider.

In my opinion the law violates the constitutional rights of Minnesotans. It does so through the so-called “individual mandate,” which requires each individual to purchase health insurance. For the first time ever, the federal government is attempting to force individuals to purchase a product as a condition of living in America.

The Eleventh Circuits reasoning
The Obama administration asserts that the mandate is simply an exercise of Congress’ powers to regulate interstate commerce or to impose taxes. But as the Eleventh Circuit concluded, the individual mandate “is a civil regulatory penalty and not a tax,” and it amounted to an exercise of power that “is unprecedented, lacks cognizable limits, and imperils our federalist structure.”

The federal health-care law also oversteps by requiring Minnesota to make costly changes to its health-care programs or risk losing billions of dollars annually in Medicaid funds.

Under the U.S. Constitution, Congress has limited power to encourage states to agree to federal standards by offering incentives. For example, in 1987, the Supreme Court in South Dakota v. Dole upheld a federal law that withheld 10% of a state’s federal transportation funding if it had a drinking age lower than 21. But, as the court stated, “in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.'”

Impermissible compulsion
The federal health-care law crosses the line into constitutionally impermissible compulsion, threatening to destroy each state’s budget by withholding all Medicaid funds if a state does not agree to the required expansions of its health programs. In Minnesota’s case, the threatened federal funds amount to nearly a sixth of the entire state budget. For instance, Minnesota will receive about $9.7 billion in federal Medicaid funds in 2012-13, 15.6 percent of the $62.2 billion total state budget.

If Minnesota lost those federal dollars, the result would be a $9.7 billion budget hole. That deficit would make this year’s $6.2 billion deficit, which brought about the longest government shutdown in American history, look like child’s play.

Such a choice is no choice at all. It is compulsion, and it goes beyond the federal government’s power by dictating the terms of Minnesota’s health-care programs, and by extension, the spending of Minnesotans’ tax dollars. If the federal government has that power, we lose our rights to hold our state elected officials accountable for spending our tax dollars.

Individual rights violated
By violating the delicate balance of our federalist system, the Obama health-care law violates the individual rights of all Minnesotans. As the Supreme Court noted just this year in its unanimous decision in Bond v. United States, “By denying any one government com­plete jurisdiction …, feder­alism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

Attorney General Swanson should stand up for the rights of Minnesotans and our state government — not defend the federal government’s encroachment on those rights — by joining the states opposing President Obama’s health care law in court.    

Harry Niska is an attorney in private practice in Minneapolis.

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Comments (24)

  1. Submitted by rolf westgard on 01/11/2012 - 05:15 am.

    Nonsense. Having health insurance prevents what should be an individual responsibility from being dumped on the community. This is why a driver is required to carry liability insurance to cover the case when his negligence kills or injures a bread winner. Both types of insurance must be required.

  2. Submitted by Hiram Foster on 01/11/2012 - 06:45 am.

    Mr. Niska takes the odd view that Congress cannot do things for the first times. You don’t have to be a constitutional scholar to ask the obvious question, if Congress can’t do something new, how could it ever have done anything in the past, or ever do anything in the future?

    But Mr. Niska is not just unproductive in knotty logical problems he proposes, but on the substance as well. Of course Congress can enact mandates. From Social Security, to Medicare, to Income taxes, to service in the military, to the regulation of various forms of interstate commerce, exclusive power over which, as any first year law student knows, was given to Congress by the Constitution. The vision the founders that we were to be one nation, indivisible, in terms of commerce was perhaps their greatest insight. It’s so curious to me that that insight, which in retrospect has been so valuable in the development of our nation is under such strong attack by anti-constitution Luddites such as Mr. Niska.

  3. Submitted by Hiram Foster on 01/11/2012 - 06:57 am.

    “The federal health-care law crosses the line into constitutionally impermissible compulsion, threatening to destroy each state’s budget by withholding all Medicaid funds if a state does not agree to the required expansions of its health programs.

    Whenever I see a copy of the constitution offered for free, I pick it up. As a result I have copies of the constitution all over the house, and I tend to look at them frequently. In none of those copies have I ever found any provisions saying that the impact of what the federal government does under it’s plenary powers such as those relating to interstate commerce is limited by the effect it may or may not have on state budgets. To be blunt, none of my copies of the constitution provide for any limitation on the interstate commerce power. Mr. Niska, from his exalted perch as a Minnpost.com commentator, apparently feels the founders were mistaken and that, and no wishes to correct the founders’ unfortunate error.

  4. Submitted by Richard Schulze on 01/11/2012 - 07:16 am.

    The Republicans will use the power they have to reduce or eliminate the fines on businesses who do not provide health insurance, and they will deregulate the mandate to only demand catastrophic care coverage. Taxes on health plans will be part of any deficit reduction plan. Businesses will seize on the new exchanges, subsidies, and changes to the tax rules as an excuse to allow them to drop their health care plans, giving their employees 1/2 to 2/3 of the cost as salary, much as they reduced expenditure when switching from defined benefit to defined contribution pension plans. As soon as a few big companies start, there will be a tidal wave following. Contrary to what you might think, Obamacare has opened the doors to American business getting out of providing for their employees’ health care.

  5. Submitted by Richard Schulze on 01/11/2012 - 07:50 am.

    The US would save a lot of money (something like 6% of GDP, or roughly $3500 per year- pr/person) simply by doing what it should have done in the first place:

    Introduce a single payer public health care system like all the other major western democracies.

  6. Submitted by David Koorman on 01/11/2012 - 07:51 am.

    “The federal health-care law also oversteps by requiring Minnesota to make costly changes to its health-care programs or risk losing billions of dollars annually in Medicaid funds.”

    There’s really no need to read any further than this statement. Yes, states have rights under the 10th amendment, but federal funds come from the federal government, which is free to impose conditions. They do this regularly with highway funds. Honestly, I think we’re going to have to look elsewhere for compelling constitutional analysis.

  7. Submitted by Hiram Foster on 01/11/2012 - 08:34 am.

    Under current constitutional jurisprudence, the ordering by the Congress to the states to do or not do certain things is problematic. That wasn’t the case back in the dark ages when I learned by constitutional law in an extremely comprehensive ninth grade civics class. But I do think the drafters of the law understood that point and drafted the bill accordingly in ways that avoid that issue.

  8. Submitted by Thomas Swift on 01/11/2012 - 09:25 am.

    I’m not a lawyer, or a constitutional scholar as many of my fellow MinnPost commentators seem to be, but I’ll take the risk to observe that since the SCOTUS has agreed to hear this case, there must be a valid constitutional question being presented.

    Also, it occurs to me that there are many actions government has take that some citizens find helpful, but thankfnully, we have the constitutional test available to ensure that what helps some does not harm others.

    I sincerely hope that when and if the SCOTUS strikes down ObamaCare in full or part, it encourages people and groups to revisit many other acttions and activities the government is involved in with a critical eye towards their constitutionality.

  9. Submitted by Hiram Foster on 01/11/2012 - 09:54 am.

    “I’m not a lawyer, or a constitutional scholar as many of my fellow MinnPost commentators seem to be, but I’ll take the risk to observe that since the SCOTUS has agreed to hear this case, there must be a valid constitutional question being presented.”

    It’s sort of basic hornbook law that nothing is to be presumed from the Supreme Court’s decision to hear a case. But I do believe that there are fundamental issues here and that the Constitution is under attack from Mr. Niska and others. What we are seeing here is a basic rejection of the unitary nature of our nation, a principle embedded in the interstate power clause of the constitution, and reaffirmed not least on the battlefields of Civil War and the transforming constitutional amendments that followed.

  10. Submitted by rolf westgard on 01/11/2012 - 10:56 am.

    It appears that Mr. Swift would be happy with lots of uninsured drivers on the road. Fortunately, preventing this is one of those government activities that he abhors.

  11. Submitted by Thomas Swift on 01/11/2012 - 12:11 pm.

    rolf, the car insurance mandate was created to enrich ambulance chasing law firms (take a look at the biggest political donations to both parties and you’ll see why they got their way).

    Citizens always had the option of suing one another in civil court to recover costs, but that cut into the profits of the tort industry.

    Having said that, and while agreeing that I wouldn’t mind seeing that mandate lifted, I do see the difference between mandating conditions for driving a car and making commerce a mandate for living in this contry….and I’m betting the SCOTUS will too.

  12. Submitted by Hiram Foster on 01/11/2012 - 12:19 pm.

    The idea that mandates are unconstitutional baffles me a bit. Seems to me, for better or worse, the government tells us to do and not do lots of stuff, a lot, and over the last couple of hundred years, we have learned to either like it or lump it.

    If a government couldn’t tell people to do stuff or not do stuff, to “mandate” things, what would be left of it?

  13. Submitted by rolf westgard on 01/11/2012 - 12:30 pm.

    Thank you, Lori Swanson for doing the opposite of what writer Niska wants.

  14. Submitted by Hiram Foster on 01/11/2012 - 02:02 pm.

    Something that it’s important to understand which is also a basic point that Mr. Niska misses is that there is not constitutional right to good or bad public policy. Just because we don’t happen to like a policy, as is the case with Mr. Niska and health care, doesn’t make it unconstitutional. Nor does it make unconstitutional that fact that a policy, like health care, is flawed, or capable of improvement. Just about all policies are flawed and can be improved.

  15. Submitted by Dan Hintz on 01/11/2012 - 02:12 pm.

    Putting aside the question of whether or not the health care law is constitutional, what difference does it make if Minnesota joins the case? If the Court strikes down the law, that decision is going to apply to Minnesota whether or not it was a party. Beyond the lead actors, the involvment of most states in this case has been nothing more than political theater. Mr. Niska’s letter falls under that category as well.

  16. Submitted by Jim Roth on 01/11/2012 - 03:01 pm.

    Yes, and there are still people who think federal income taxes are unconstitutional.

    Unless the current Supreme Court wants to ignore the principle that it is usually bound by past precedents (as it did in the United Health case) and thereby continue to be an activist court, the Commerce Clause has been given very broad leeway and the federal health care law should be upheld. This is just another attempt to politicize the Supreme Court, which outspoken conservatives criticize, but regularly do when it suits their purposes.

    I agree that a single payer public health care system is a better solution, but it has no chance in the face of lobbying by those who profit from the existing system so the federal health care law should be supported since the best solution is politically unfeasible

  17. Submitted by James Hamilton on 01/11/2012 - 03:17 pm.

    The only purpose to be served by joining on any side of the argument at this point is purely political. Whatever the outcome, Minnesota will be bound by the decision. For my money, the AG can spend our resources here in Minnesota.

  18. Submitted by James Hamilton on 01/11/2012 - 03:29 pm.

    @9:

    Once there was a split of opinions between the federal appellate courts, the USSCT was pretty well obligated to hear the case, if only to resolve the difference of opinions. So the fact that it granted cert doesn’t mean anything about the merits of the claims, just as a denial of cert is meaningless to anyone other than the litigants.

    Of course, this case gives all of those on the court an opportunity to sharpen their respective axes. As in so many other cases in recent years, it may all come down to Kennedy, a Reagan appointee who’s straddled the middle of the field for almost 24 years.

    Having handed down so many controversial decisions over the past decade or so the Court really had no choice but to grant extraordinary time for arguments, if only to appear to have given the arguments due consideration. I, for one, wish they would broadcast the arguments, even if only audio. It’s going to be an historic event, whatever the outcome. It’s only just that the nation have the right to be present in the courtroom that day.

  19. Submitted by Bob Petersen on 01/12/2012 - 08:24 am.

    These Obamacare supportive comments are pretty funny. Car insurance? That was done because driving is a privelidge, not a right, and extends to protection of the self and others. Highway funds? The writer says why highway funds are withheld – only a small portion of them and not all. Single payer the best? Tell that to my friends in Canada and England who absolutely hate it as it rations care and is a big tax burden on them that no one can get rid of.
    It’s apparent that many do not understand that the Constitution was written to prevent an onerous government mandating things to live in a free society. That is the basis of how we came into existence and being the greatest and most sought after country on earth. Obamacare is a mandate to live and therefore a penalty to all. Is comprehesive health a good thing? Absolutely. But it needs to be done differently and comprehensive does not mean government run. Obama himself has said it’s not a good laid out program, but a start. So scrap it and start over that is good for all instead of ramming it down America’s throats. Richard’s comments of getting it out of emplyment is a great idea. But let’s have employers give money in lieu of it and let individuals purchase what they want on open markets with no state borders. Direct competition and accountability to the consumers will be where we save money and everyone will have access.

  20. Submitted by Hiram Foster on 01/12/2012 - 11:11 am.

    Car insurance? That was done because driving is a privelidge, not a right, and extends to protection of the self and others.

    Are you suggesting health care is a right not a privilege? And even if something is a right, don’t we have to pay for it’s exercise.

    By the way, this right=privilege distinction with respect to the interstate commerce clause may appear in Mr. Niska’s copy of the constitution, but it doesn’t appear in any of mine.

  21. Submitted by Hiram Foster on 01/12/2012 - 12:27 pm.

    “It’s apparent that many do not understand that the Constitution was written to prevent an onerous government mandating things to live in a free society.”

    Actually, if you read the document, it really doesn’t do a lot of preventing. It’s a blue print for the organization of a federal government, and it provides a lengthy list of things the federal government can do, not so much what it can’t. And it’s also important to recall that the document was significantly revised after the Civil War by a series of amendments which greatly enhanced the power of the federal government.

  22. Submitted by Walter Wozniak on 01/12/2012 - 06:42 pm.

    In regard to states being penalized for not accepting provisions of the new health care law, is this not the way the the federal government
    Imposed its will when giving out money for highways?
    I seem to remember threats of withholding funds to states who did not comply with mandates regarding speed limits and legal drinking ages in their states.

  23. Submitted by Hiram Foster on 01/13/2012 - 05:54 am.

    In regard to states being penalized for not accepting provisions of the new health care law, is this not the way the the federal government imposed its will when giving out money for highways?

    The problem comes from a relatively recent line of decisions that have come down fortunately after the federal government built America’s highways. Without going too much into the murky details, the Supreme Court is now on the lookout for what it sees as excessive interference in state legislative functions. Basically, it’s problematic when Congress tells state legislatures what to do, or maybe go too far in telling the legislatures what to do. What that means in any specific instance is anyone’s guess. To the best of my knowledge, it depends on what entrails the aged and unelected Anthony Kennedy has consulted recently or perhaps what he had for breakfast. In any event, Obamacare was constructed to avoid these new constitutional pitfalls. Whether the drafters were successful is one of the things the justices will tell us, I suppose.

  24. Submitted by Karen Sandness on 01/13/2012 - 05:58 pm.

    Bob Petersen: I have to wonder how many people in Canada and Britain, which have *very* different health care systems, actually “hate” their systems.

    (Just for people who don’t know the difference between the two systems, health care providers in Canada are mostly in private practice but the provincial government pays all the charges. Most health care providers in Britain are government employees and are salaried, although there is an optional private sector.)

    How many Canadians or British people have you talked to about their health care systems? Medical bankruptcy is unknown in either country, and while a person may have to wait for optional procedures like hip replacements, you can’t get a same-day hip replacement here, either. I think that what really frosts conservatives about these systems is that rich people don’t have an advantage over poor people. They BOTH wait for hip replacements.

    However, in either system, people who have heart attacks or fall down the stairs and break their leg or show up with an acute illness are seen immediately and don’t have to worry about how they’re going to pay their medical bills.

    The so-called “Obamacare” really does so little that it’s strange that conservatives are so upset about it. It is merely Mitt Romney’s Massachusetts Care extended to the entire country, an idea that *Republicans* have been pushing as *the* solution to the health care crisis since the Reagan administration. It does nothing to lower costs or make insurance affordable for the middle class. It’s really rather pathetic.

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