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

In November, the U.S.

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.

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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.    

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Harry Niska is an attorney in private practice in Minneapolis.