States Take Action

States Take Action on Health Care Reform:

Utah joins the fray:

Utah's attorney general is preparing to joins a lawsuit that challenges the Senate's massive health care reform bill. Utah is one of 10 conservative states prepared to challenge the health care bill.

The reasoning behind the suit goes way beyond the cost of the legislation. The attorneys general, including Utah's Mark Shurtleff, say there are constitutional questions. Even more, they say the so-called Nebraska compromise part of the deal smells of corruption....

[The states] have constitutional questions about mandating state legislatures to enact portions of the bill.

"That's unprecedented. State legislatures can't be mandated by the federal government to do anything," Swallow says.

The Voting Rights Act springs to mind; it mandates that certain (but not all) state legislatures structure their gerrymandering apportionment in certain ways, and then submit them to Federal review. However, that is rooted in clear Constitutional authority: the Constitution itself requires the state to pass laws regarding the handling of elections, and the 14th Amendment imposes the requirement to see that there is equal protection for those who are citizens. Since the states ratified the Constitution and its amendments, this is not the same thing as the Federal government unilaterally assuming the power to order state legislatures to pass certain laws.

That, by the way, is seven constitutional challenges by my reckoning:

1) Is it constitutional for the Federal government to require US citizens to purchase a product as a condition of existence? (General question: where is the authority?)

2) Is it constitutional for the Federal government to override the religious objections of doctors and nurses by forcing them to provide abortion coverage if they are Catholic or otherwise objectors? (First Amendment, freedom of religion.)

3) Is it constitutional for the Federal government to override the religious objections of citizens by forcing them to materially support abortions by paying into a mandatory fund that will be uesd to provide them? (First Amendment, freedom of religion.)

4) Is it constitutional for the Federal government to impose the religious objections of Rep. Stupak and others on women by allowing the banning of abortion coverage? (First Amendment, freedom of conscience.)

5) Is it constitutional for the Federal government to rewrite the insurance industry's practices in such a comprehensive way, without providing just compensation for their existing investments, and a fair profit margin? (Fifth Amendment, seizure without recompense; see Prof. Epstein's paper.)

6) Is it constitutional for the Federal government to override what appears to be a clear statement by the Tenth Amendment that this is an area left to the states? (Tenth Amendment, powers not delegated.)

7) Is it constitutional for the Federal government to dictate to state legislatures what laws they will pass? (General, where is the authority?)

I'd add an additional one: is it constitutional for the Federal government to adjudicate such a dispute in Federal courts? The constitution created both the State and Federal governments, with separate spheres of authority. The 14th Amendment broadened the Federal authority to a very great degree, and brought state laws within the scope of Federal courts. However, I don't see that it likewise made the Federal courts the proper place to answer questions about where Federal power ends and State power begins.

That is a question that neither sphere of government could expect to examine dispassionately. It seems to me to be an issue that is meant to be resolved not in court, but with the democratic mechanisms. The Federal government has a clear interest in the disposition of the power structure, as do the State governments. The People are the only ones who should be making these choices.

That implies a need to answer the question through the amendment process, or the Constitutional convention process. Those move through the democratic mechanisms, in order to return the question to the People and seek a clear, new authority. No other settlement should be considered valid, I would think, given the clear conflict of interest that the court would have.