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March 24, 2010 10:12 PM UTC

Experts To Suthers: Good Luck With That

  • 19 Comments
  • by: Colorado Pols

The opinions are starting to come in on the viability of the lawsuit filed by (mostly) Republican attorneys general against the passage of federal health reform legislation, including Colorado AG John Suthers–consensus? Not a hope in hell, folks. Starting with the Denver Post:

Louisiana Attorney General James “Butch” Caldwell is the only Democrat joining the lawsuit. The others represent Colorado, Alabama, Idaho, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington state. Virginia’s Republican attorney general, Ken Cuccinelli, filed a separate suit.

Several noted law professors said there are significant legal hurdles in establishing the states’ standing to challenge the health care law and in convincing federal judges that it violates the Constitution.

Congress is empowered by the Constitution to regulate interstate commerce. Some opponents of the new law argue that Congress’ mandate that individuals must purchase insurance from private vendors is unprecedented, because uninsured individuals aren’t participating in commerce. Many constitutional law experts, however, said that the health insurance mandate is clearly within Congress’ reach under the Constitution.

“It would be surprising if the (Supreme Court) says Congress can’t regulate people who are participating in the $1 trillion health care market,” said David Freeman Engstrom, a Stanford University Law School professor. “The lawsuit probably doesn’t have legs both as a matter of precedent and as a matter of common sense.”

In the Huffington Post today, Sam Stein writes that the fundamental basis of this lawsuit, the constitutionality of the individual mandate to obtain health coverage, is off-base:

It’s called the “Empowering States to be Innovative” amendment. And it would, quite literally, give states the right to set up their own health care system — with or without an individual mandate or, for that matter, with or without a public option — provided that, as Wyden puts it, “they can meet the coverage requirements of the bill.”

“Why don’t you use the waiver provision to let you go set up your own plan?” [Sen. Ron Wyden] asked those who threaten health-care-related lawsuits. “Why would you just say you are going to sue everybody, when this bill gives you the authority and the legal counsel is on record as saying you can do it without an individual mandate?”

And you know, it’s a funny thing about that much-reviled unconstitutional treasonous health insurance “mandate,” reports the Miami Herald:

“The truth is this is a Republican idea,” [Pols emphasis] said Linda Quick, president of the South Florida Hospital and Healthcare Association. She said she first heard the concept of the “individual mandate” in a Miami speech in the early 1990s by Sen. John McCain, a conservative Republican from Arizona, to counter the “Hillarycare” the Clintons were proposing.

McCain did not embrace the concept during his 2008 election campaign, but other leading Republicans did, including Tommy Thompson, secretary of Health and Human Services under President George W. Bush.

Seeking to deradicalize the idea during a symposium in Orlando in September 2008, Thompson said, “Just like people are required to have car insurance, they could be required to have health insurance.”

Among the other Republicans who had embraced the idea was Mitt Romney, who as governor of Massachusetts crafted a huge reform by requiring almost all citizens to have coverage.

“Some of my libertarian friends balk at what looks like an individual mandate,” Romney wrote in The Wall Street Journal in 2006. “But remember, someone has to pay for the health care that must, by law, be provided: Either the individual pays or the taxpayers pay. A free ride on government is not libertarian.”

Gosh, folks–what happened, do you suppose? What turned the individual mandate from a Republican idea championed by Mitt Romney and John McCain, into something that “violates constitutional principles and lacks constitutional authority,” like Suthers said Monday? Because with the possible exception of January 20th, 2009…we can’t think of anything.

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19 thoughts on “Experts To Suthers: Good Luck With That”

  1. John Suthers wrote a book entitled “No Higher Calling, No Greater Responsibility; a Prosecutor Makes His Case.” It is part of the Speaker’s Corner series. Some other authors of thought-provoking subjects are Dick Lamm, Dottie Lamm and Gary Hart (www.fulcrumbooks.com).

    In the book, praise is given by Ken Salazar and the Foreword is written by Gov. Bill Ritter.

    What is interesting is that in the Introduction Suthers states: “…I suspect that my views…about litigious “activism” on the part of state attorneys general will also be seen as somewhat controversial.”

    He goes on to explain this comment more fully in a subsequent chapter: “Now, don’t get me wrong. I believe it’s wholly appropriate for me to weigh in on policy issues related to my statutory or constitutional jurisdiction as an attorney general…when it comes to litigation, I still believe my only appropriate consideration should be whether the law has been violated and whether there’s sufficient evidence to prove it in court. I believe attorneys general should seek to solve problems only through remedies provided by the constitution and by the legislature….I don’t believe it’s appropriate for attorneys general to pursue consumer protection or environmental protection litigation that doesn’t derive from constitutional or statutory authority, but rather represent the attorney general’s personal view of what constitutes the public interest.” He continues: “…it’s clear to me that some of the litigation that state attorneys general are currently pursing constitutes a circumvention of the legislative function in a manner that the governor or other executive officer could never accomplish.”

    In December, 2009 he joined a “cadre of Republican state attorneys general” saying that exempting Nebraska from millions of dollars in higher Medicaid costs in exchange for Sen. Nelson’s support of the health care reform bill would violate constitutional provisions requiring equal treatment among states. Now he has joined the challenge of the individual mandate for insurance coverage included in the health care overhaul. Notably, this appears to be inconsistent with what he set out in his book as the proper role of an attorney general as a public policy maker.

    Of course, he is hiding behind the constitution. Most constitutional law scholars are clear that congress is empowered by the Constitution to regulate interstate commerce and that the health care mandate is within congress’ reach under that provision of the Constitution as well as the power to tax.

    In today’s DP opinion Suthers says that he is not motivated by politics in joining the action but rather he is assuring that this unprecedented expansion of the power of the federal government does not undermine the rights of the states and their citizens. (Never has he questioned the state law requirement that all Coloradans are required to purchase automobile insurance in the private market).

    1. But I’m tired of hearing the auto insurance argument. It’s not applicable. The requirement for auto insurance is a requirement imposed by the states.  The health insurance mandate is a Federal requirement.  It’s not the same.

      1. It’s also a requirement for residents in exchange for a driver’s license and auto registration. The health insurance mandate is in exchange for being alive. At least that’s an argument Suthers made.

      2. I’m hearing it all the time also, but the legal justification for mandating auto insurance is different.

        Let Suthers and the other Luddites blow their smoke – its just more filling for the Republican Book of Talking Points.  

        1. on Talkleft.com, the most prominent legal blog in Colorado.

          http://www.talkleft.com/story/…

          Apparently the AGs filing suit might hang their hats on Printz vs. United States, in which the Feds tried to get the States to enforce provisions of the Brady Law.

          The States won.  Scalia wrote the opinion.

          Not being an attorney, I can’t say if it’s a good plan.  But the article and the analysis was interesting.

          And with four batshit crazy activist judges (and one crapshoot) on the Supreme Court, anything can happen.

      3. the car insurance thing threw them for a while.

        The real key point here is that Suthers should know that the Democrats will have thought out this one and have a counter ready.  He should also see that Republicans are getting out maneuvered on procedure and the Democrats are just routing Republicans with legislative tactics.  The dude should know that Republicans are beaten on this issue.  Don’t make the beating any worse by leaning into the punch.  Duh.  Cut your losses and salvage some political capital for next time.  He is wasting taxpayer dollars to try and deny that Republicans just got their heads handed to them.  The Dems. have this obstruction covered and he is walking into a trap because of his Republican arrogance.  

    2. although it is not the first time that he has joined a frivolous conservative publicity lawsuit on behalf of the people of Colorado.

      It is not just a break not just with any reasonable standard of good professional judgment, in favor a yet another partisan efforts to create a controversy where no legitimate controversy exists.  It also breaks with his own claim to be a relatively technocratic “career prosecutor” and with his own statements on the subject which you have quoted above.

    3. This was before Suthers did the longer term math. He cannot be Colorado AG forever.  He saw Maes and Buck do unexpectedly well at caucus and now his opinion on the proper rol of the CO AG is quite different.  Amazing.

  2. Mitt Romney and John McCain are both complete hypocrites.  Boy, that came out of nowhere.  

    I got an e-mail urging people to call Suther’s office to voice opposition to his position on this. The number is:

    303-866-3617  

    1. Any Republican who’s ever seriously considered health insurance reform has endorsed something roughly along the lines of the current bill. This plan was supported by Bob Dole and Howard Baker.

      Like them, Republicans turned on their own plan when a Democratic President started liking it.

      Republicans are children. “I want ice cream, I want ice cream!” “OK, here’s some ice cream.” “Yuck, ice cream! I want cake!”

  3. This is one of those situations where opinion on both sides was running white hot and immediately after the bill passed Sunday evening he jumped on the bandwagon and joined the lawsuit. He should have slept on it for a night or two before deciding. He would have thought better of it had he done so but now he is part of the group of Republicans who want to stop or overturn this legislation and he will be explaining for the next year or so why he supports and wants to restore:

    1. Allowing insurance companies to cancel someone’s insurance if they develop a serious medical condition;

    2. Allowing insurance companies to deny an individual coverage when they have a preexisting serious medical condition;

    3. Allowing insurance companies to cancel children from their parents insurance once they reach the age of 21;

    4. The situation where one third of the personal banckruptcies in America are caused by overwheming medical bills.

    It doesn’t matter that the lawsuit is focused on a narrow issue. He will be lumped in with the other Republicans who want to destroy health care reform and go back to the system that clearly didn’t work. He should have slept on it for a few nights.

  4. to Suthers?

    “It would be surprising if the (Supreme Court) says Congress can’t regulate people who are participating in the $1 trillion health care market,” said David Freeman Engstrom, a Stanford University Law School professor. “The lawsuit probably doesn’t have legs both as a matter of precedent and as a matter of common sense.”

    I’m writing in Steve Harvey since I couldn’t vote for him otherwise.

  7. But this strikes me as a borderline frivolous lawsuit.  Basically you are left with the argument that a law requiring people to participate in interstate commerce isn’t the “regulation of interstate commerce.”  Even under a narrow definition of the Commerce Clause, that seems untenable to me.

    And the argument that this is really regulating “inactivity” isn’t any better.  You’re regulating “inactivity” BY REQUIRING THE REGULATED POPULATION TO ENGAGE IN INTERSTATE COMMERCE.  Once again, you really have to jump through rhetorical hoops to reach the conclusion that this isn’t the regulation of interstate commerce.

    Combine this with the numerous cases holding that it is permissible to regulate people who are emphatically NOT participating in interstate commerce where their noncommercial activity has an effect on it (Wickard, Raich), or the cases holding that the Commerce Clause gives Congress the power to require people to engage in transactions that they otherwise would not want to left to their own devices (Heart of Atlanta Motel, McClurg)?  Yikes.  Once again, I think the AG is a surprisingly good lawyer for a politician, but if I’m opposing counsel in Florida, I move for Rule 11 sanctions, unless they can come up with some case supporting their theory of Article I, sec. 8.  And Lopez and Morrison (two cases that dealt with noncommerical regulation that very tangentially affected interstate commerce) won’t do.

    Finally, I note that the above applies even before you take into account that fact that the “inactivity” cited by the AGs is really a (economic) decision to self-insure, or that the mandate is couched as a tax.

  8. Medicare’s or Social Security! Look at your last paycheck. There is a deduction called FICA. You are paying for a product and it is mandated.

    This is ridiculous. The “mandate” that Suthers mentions in his form letter responses is a TAX for not paying to get insurance. Unless we are arguing whether the federal government has the power to tax, this lawsuit is baseless

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