Driving through Colorado and Nebraska the other day, I had the pleasure of listening to a fascinating debate on whether the new health care law is constitutional. Today, MPR’s Midday is debating the question with South Dakota Attorney General Marty Jackley and former Minnesota AG Mike Hatch. South Dakota is one of the state’s challenging the constitutionality of the new law.
On the WBUR debate the other day, one professor kept insisting the “it’s not constitutional” position is not a principled one, because other federal mandates — Medicare, for example — have gone unchallenged.
I’ll provide the poll here now, but encourage you to keep an open mind, listen to the debate and then respond.
Here’s a live blog of today’s debate:
11:10 a.m. - Here’s the background piece from Nina Totenberg at National Public Radio:
11:12 a.m. Jackley: Says he joined the lawsuit because of federal encroachment on state’s rights. The Commerce Clause gives the federal government wide realm to be involved, but this goes too far. The issue of the impact on the state budget ‘goes hand in hand.’ Congress has exceeded its authority and the legislature in South Dakota is in better position to make the reform.
11:14 a.m. Hatch: It’s no more than a political stunt. (David) Rivkin, the lawyer representing the challenge, argued the Senate had no right to investigate torture. We’ve had COBRA, that extends insurance for people who lose their jobs.
Q: This is the first time the government has said, “You have to buy this product.”
Hatch: This doesn’t take effect for four years. The person making $50,000 would pay a fine of $500, unless they can’t find a policy. It’s a mandate in a sense that the IRS is a mandate.
11:17 a.m. – Jackley: This is the first time the federal government has come down and said, ‘you shall buy a private product.’ This is economic unactivity. That is why the Lopez and Morrison line of decisions — which limit Congress — come into play. (Here’s Lopez. Here’s Morrison.)
Hatch: Companies aren’t going to build auto plants in the U.S. without health care. A state can opt out of the law if it provides some sort of coverage.
11:20 a.m. – Caller from Roseville: The federal government tells me if I travel outside of the country, I have to have a passport. If I own a home, I have to have insurance. How is this different.
Jackley: Those are individuals making personal choices to enter into economic activity. We’re talking about penalizing folks for not taking certain actions. If you allow Congress to regulate both economic activity and economic inactivity, that’s not what the Founding Fathers said. Those powers not enumerated in the Constitution, revert to the state. While there needs to be health care reform, that should be left to the states. They’re in a better position to understand their constituents’ needs and their state budgets. That’s the real big push for the lawsuit.
Hatch: We have Social Security. You can be drafted if the federal government wants. To say that health care isn’t related to interstate commerce, that’s a stretch. We have COBRA and ERISA. Over 60% of Americans have their health care through the government one way or the other. The idea that somehow the other 40% is going to be pure and unregulated is a little absurd.
Jackley: If you allow this extent of involvement by Congress, there is nothing to prevent them from getting involved in every area of our lives. This is a bipartisan litigation. Look at the 13 states in the litigation, four have Democratic governments. You have bipartisan agreement that there are colorful claims.
Q: What is a colorful claim?
Hatch: It means you’re not going to get sanctioned by the court for making a ridiculous claim. All of the states involved are heavily Republican. The only one who’s a Democrat is in Louisiana, which follows the Napoleonic Code, for cripes sake.
Q: Why bring in a controversial figure like David Rivkin in this?
Jackley: When you talk about this group of attorneys general, it’s a pretty diverse group. I was a former U.S. attorney. So were two others. Beginning back in December, my governor was aware of the discussions and I, as attorney general, made Sen. Thune and Rep. Johnson aware. We had to pull the trigger Sunday night at 9 o’clock. I was on the phone e-mailing the chief of staff on Tuesday. I wanted to make sure it was the right decision for South Dakota. I know there’s talk about Rivkin and what we’re paying and I looked at what it’s going to cost our state. I’ve set a budget of $25,000 for my state. Rivkin is not germane to the issue of whether this is constitutional.
11:35 a.m. - Q: How long will it take to determine whether the law is constitutional?
Jackley: It will have to move through the district court, then it will be appealed to the 11th Circuit. That will take a couple of years. There’ll likely be more states joining and the suit will be amended. The court will likely be asked to enjoin federal officials. The penalties don’t start kicking in until 2014, but some of the measures kick in sooner than that (closing the Medicare “doughnut hole” for example)
Hatch: There’s 30 million people going around… they’re going to a doctor to get treatment. They don’t just stay home and die. They go to emergency rooms and they’re breaking the bank of the hospitals and, frankly, some insurance policyholders. It’s clearly interstate activity.
11:38 a.m. Q: Will reimbursement make up for South Dakota’s Medicaid costs.
Jackley: No. Our governor says we’re looking at a known cost of $57.3 million increase. That’s pretty substantial for South Dakota. Forty-three cents of every dollar goes toward education.
Hatch: If your state already has Medical Assistance, I don’t see why this would require a new bureaucracy.
Jackley: Are you saying there’s a funded Medicaid mandate after 2016?
Hatch: I don’t know if I’m going to be alive after 2016?
Jackley: I think that answer is ‘no,’ Mike.
11:42 a.m. Q: How does this mandate differ from other federal mandates?
Jackley: When you look at Medicaid, it’s a federal-state partnership that has a lot of opt-out provisions. This one turns from a partnership to a dictatorship. There are points at which you cross that line. Requiring all Americans to purchase insurance or be taxes crosses that line.
Hatch: President Bush brought up No Child Left Behind and no money. And I didn’t see any states file a lawsuit seven minutes after he signed the bill claiming it was an unfunded mandate.
>> Gary Eichten brings up an interesting case: Gonzales v. Raich, which answered the question of whether the federal government can prosecute someone for smoking marijuana — in violation of federal law — in a state which has allowed the use of medical marijuana.
11:49 a.m. – Hatch: In this case (above) we’re dealing with health care, which is already heavily regulated by the federal government. There’s all sorts of direct regulations of hospitals and doctors. It’s one of the most heavily regulated areas of commerce and to say at this late stage that it’s not is wrong.
11:51 a.m. – Q: Could the court issue an order preventing the law from taking effect?
Hatch: They could. It should be resolved before it fully takes effect. Small businesses will get a 4% credit. Is that going to be enjoined?
Jackley: The judge is going to be looking at this. We’ll be talking about irreparable harm. As this thing kicks in and we get the detriments, it should come soon. One nice thing is that it’s really a legal question, we’re not looking at extensive fact-finding and depositions. We used a fillet knife to put together our arguments. This case can move forward fairly quickly.
11:55 a.m. – Q: Is this a state’s rights issue?
Jackley: Somewhat, it is. We concede the courts have said Congress can regulate economic activity, if you take it the next step and say Congress can regulate economic inactivity, it really will lead to all sorts of new regulations. If it’s not in the Constitution, the rights belong to the states.
Hatch: This is the whole Tea Bag thing.
11:56 a.m. – Q: If it goes to the Supreme Court, can we assume the court will uphold the lawsuit 5-4?
Hatch: The toothpaste can never be put back in the tube if they rule this way.
Jackley: I don’t like to make assumptions. The question needs to be asked. “When does Congress go too far in regulating our lives?” When you look at the argument that Mike has been presenting, my question to Mike is ‘when do we draw the line?’
Hatch: If we’re going to draw the line and say Congress shouldn’t regulate health care, then I guess we should file suit to stop Medicare, Medical Assistance, COBRA — the right to continue insurance after you leave an employer.
— end —