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  • Outside the Beltway: State AGs Start the Road to Repealing Obamacare

    Attorneys General to Sue to Stop Health Care Reform

    As liberal groups begin plotting to spend millions of dollars to “sell” Obamacare to Americans in swing House districts, at least 12 state attorneys general are mounting an effort to stop Obamacare in its tracks on constitutional grounds.

    At issue is the provision in Obamacare that forces Americans to buy health insurance or face an annual $750 fine. Richmond Times-Dispatch reports that Virginia Attorney General Ken Cuccinelli plans to sue the federal government on grounds that the mandate violates the Commerce Clause of the U.S. Constitution:

    “At no time in our history has the government mandated its citizens buy a good or service,” Cuccinelli said.

    Separately, attorneys general in 11 other states – Florida, South Carolina, Nebraska, Texas, Utah, Pennsylvania, Washington, North Dakota, South Dakota, Alabama and Michigan – plan to join together in filing a lawsuit as soon as President Barack Obama signs the legislation into law, according to a Jacksonville Business Journal and Associated Press reports.

    In a press conference this morning, Florida Attorney General Bill McCollum said, “To fine or tax someone just for living … that’s unconstitutional. There is no provision in the Constitution giving Congress the power to do that.”

    South Carolina Attorney General Henry McMaster said Sunday: “The health care legislation Congress passed tonight is an assault against the Constitution … A legal challenge by the states appears to be the only hope of protecting the American people from this unprecedented attack on our system of government.”

    The Heritage Foundation’s legal scholars have documented why an individual mandate violates the U.S. Constitution, noting, “Nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party or purchase a good or service.”

    That fact, however, did not stop Congress from acting outside its authority. Now, it seems, states are taking up arms to defend the tenets of our Constitution that Congress has been so quick to ignore.

    Posted in Obamacare [slideshow_deploy]

    29 Responses to Outside the Beltway: State AGs Start the Road to Repealing Obamacare

    1. Veronica Russell, Co says:

      Growing up, I read books like 1984, and thought “Never here; not in America.” Listening to the stories of my Mother, growing up under Hitler and seeing my grandmother dying under social medicine, I thought, “Never here; not in America.”

      My heart grew cold as I watched last night as the votes to pass this enormous social medicine bill grew. Still I thought “Never here; not in America”.

      But it did happen; here in America; the last vestige of freedom.

      I will join you and others to keep America as it states in our Constitution. To do whatever it takes to leave a free country for my children and grandchildren to inherit. Me and mine will carry on the steadfastness of our forefathers to continue the fight to stay free.

      God Bless America!

    2. Allison, PA says:

      I am glad that my AG is one of the 11 fighting this unconstitutional piece of legislation. I can't believe that some democratic representatives ignored their constituents and still voted for this overtaking of health care. I am curious if this will split the democratic party?

    3. Rickard F. Pfizenmay says:

      Among its constitutional defects, this legislation exceeds Congress' power to regulate interstate commerce. Despite court opinions to the contrary, total federal power is neither mandated nor contemplated by the Commerce Clause. Quite simply, the commerce power is limited by the constitutionally established sovereignty and integrity of the states.

      Forty-two (yes 42) years ago I wrote a law review note on a case (Maryland v. Wirtz) involving Congress' use of the Commerce Clause to regulate state activities. If the courts had adopted the analysis suggested in the article, the federal government's use of the Commerce Clause to implement social policy would not have reached the current critical stage where our very principles of federalism are in danger. At its core, the article argues that the commerce power, like the taxing power, is inherently limited so that it cannot be used to destroy state sovereignty. The article, which contains an extensive review of Commerce Clause cases, may be found at 66 U. Mich. Law Review 750 (1968).

      Hopefully, the judicial process can bring about a restoration of the constitutional balance of power between the federal government and the states.

    4. J.C. Hughes, Texas says:

      States offer the only comfort with yesterday's grotesque federal passage of HCR. In addition to the insurance purchasing mandate, where in the constitution does it grant federal power over ordinary domestic affairs? By design, power over social matters is constitutionally retained by the independent states. Instead of building upon (part of Pelosi's boast) past federal transgressions like the New Deal and Great Society, congress should have focused on the eventual transfer of these earlier entitlements back to the states.

    5. Tony Smith says:

      Even if the mandate is unconstitutional, this won't stop the legislation. The Supreme Court would only strike that one provision. Also, why on Earth should the Heritage Foundation analysis trump all of the lawyers on the Hill? http://dissentingjustice.blogspot.com/2010/03/mor

    6. J.C. Hughes, Texas says:

      Tony Smite wrote: " … why on Earth should the Heritage Foundation analysis trump all of the lawyers on the Hill?". Because said lawyers apparently fail to understand our founding federalist principles. Building upon earlier ill conceived policies does not make right. There are moments when it's best to hit reset. Such is the case here.

    7. Michael, Ohio says:

      Tony – you asked "Also, why on Earth should the Heritage Foundation analysis trump all of the lawyers on the Hill?" – Because they are right!!!

      Have you ever read the Federalist Papers? They clarify the intent of the Founding Fathers & demonstrate incredible foresight – they somehow realized that people like you wouldn't understand the concept of limited government and enumerated powers. Lots of other things the federal government does are unconstitutional, but this was over-the-top egregious and woke us to the fact that there are people actively attempting to undermine our god-given freedoms through willful disregard of the constitution. I took an oath to defend the Constitution against all enemies, foreign & domestic, and now I am really struggling with the undeniable fact the the primary enemy of the constitution is also my Commander in Chief

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    9. Billie says:

      What I don't understand is, if the insurance companies are as bad as obama portrayed them, why, then he failed to do anything to avoid it? This is admittance of his lack of intelligence and a government made crisis to simply, take–over.

      I am a lady, but curious to know what title of the "government butt wiping program" is under? And how many and how much are czars paid to conduct?

    10. elc says:

      From the cited memorandum: "Such a doctrine would abolish any limit on federal power and alter the fundamental relationship of the national government to the states and the people. For this reason it is highly doubtful that the Supreme Court will uphold this assertion of power."

      Alas, this analysis is both incisive and premature. The first statement quoted is undoubtedly true. But the truth of the second depends entirely on the answer to only one question: how many of the justices now sitting WANT to "abolish any limit in federal power and alter the fundamental relationship…"?

      If five or more of them want to do that, then that's exactly what they'll do. I wrote about this almost seven years ago: "See what's going on? Like-minded individuals on SCOTUS cobble together a coalition: if they want to approve something, they find an excuse to do so; if they want to not approve something, they find an excuse to not do so. Unless they can't agree on an excuse: then, each throws out whatever excuse he can come up with."


    11. Jill, California says:

      Why are so few attorneys general threatening to sue? All 50 should be united in this.

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    14. Neil, USA says:

      No one should be surprised that this "Health Care" bill passed. This is just the latest assault on constitutional America. For over fifty years "progressive" politicians, judges and other public figures have been working to destroy, through ridicule, criticism, and outright opposition, traditional America. The values and beliefs of traditional America are nearly gone. Self reliance has been replaced by dependence. Self deternination has been replaced by compliance. Determination to do right has been replaced by weakness and improbity. I mourn the loss of a great nation and the people that created.

    15. Frank Chiaramonte, U says:

      You fail to even mention a single argument as to why the bill may actually be Constitutional. Your bias against the bill is pretty obvious, and your pathetic excuse for explaining the commerce clause limitations on federal power indicate your bias. It seems that groups like this foundation pretend to uphold the 'holiness of the Constitution' only when it serves your policy goals. There are two reasons for which I see the bill as constitutional. First, the aggregation principle established in Wickard v Filburn allows the federal government to intervene in private affairs when they consist of economic activity which 'substantially affects interstate commerce." Thanks to the "free market approach" to health care that our country has taken in the last century, medical care is economic activity. Now consider the amount of money that is made and lost in the interstate market because of medical issues. I don't only mean the interstate medical industry, but also any loss/ gain in value of assets in our country based on the aggregate effects of health/ illness across the board. If the Federal Government can prove these two elements, then they can prove the constitutionality of the law

      The Supreme Court has struck down federal laws that intervene on this basis before. For example, in US v Morrison and US v Lopez, the court decided that guns in schools and violence against women did not affect interstate commerce enough to justify the laws. In Gonzales v Raich,(2005) however, The court allowed the federal government to intervene with California law because of the aggregate effects that medical marijuana consumption can have on the national economy. The aggregate effect of the health care system on the economy are much more obvious(and 100x bigger financially) than in the Raich case, and the Court will likely agree. The non partisan CBO determines that the health care plan would save 300 billion over the next 10 years. That is an aggregate effect, the research has already been done by a neutral party.

      The Federal government also has an argument that the individual mandate is a tax and not a fee. By levying a tax on those who refuse to participate in the program, the plan is simply ensuring that people that do participate are getting a fair deal. The Federal Government's power to tax is slightly broader than their power to regulate and they will use this argument in Court to justify the law. If states like FL are allowed to opt out of the federal tax requirement, then they are discriminating against citizens of other states and unfairly advantaging their own citizens.

      In the end, this is a pretty nifty constitutional issue, and nobody really knows where the chips will fall in the Supreme Court. I do not like to hear the scare language about how far the federal government is overstepping their bounds in enacting this bill. All males, regardless of their 'economic activity' are required, on penalty of fine (or jail time), to register for the draft. Anybody who wants medical care in a legitimate clinic today must pay a fee (sales tax) on the services they receive. States are allowed to mandate that all drivers have car insurance, even when their cars are immobile. For gosh sakes, every American taxpayer has had to fork over an average of $3000+ just so we could replace the government of Iraq for no good reason. Just let congress do some legislating, spending money at home to help the people is actually better than spending it on bullets sometimes :)

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    17. Christopher Kelly says:

      I had to comment when I saw your comments Frank Chiaramonte because it is obvious how biased you are against for the bill sir. Let me approach your arguments with civility to show you the problem with your argument.

      First you ask people to prove that the bill actually IS constitutional?!? Are you a law professor at the Unversity of Utah with a warped view of the Constitution? Or are you a student simply spewing talking points? Either way, the Constitutional as shown by its list of evils was never meant to be a guideline for what the government can do. It was a list of what the government cannot do. Imagine coming out of the Revolutionary War. The war was fought over taxation without representation and oppressive laws that limited the settlers' freedom. As a result, they wrote the Constitution to establish a government that did not tax without representation and did not allow oppressive regulation. Today, one-third of what I make is consumed by the government, and I am forced to buy healthcare or pay a fine. How is this not oppressive regulation, Frank? If you can answer this question, I really would love to hear your answer. My guess would be that you would not be bold enough to answer such a question straight from a Constitutionalist as my self. Read the Federalist and become educated my man!

      As for your argument, let us be clear about the difference between court cases and Constitutional law for all those reading this article! You used four court cases to call certain actions Constitutional, but such an argument is an EXTREMELY slippery slope which most of free-thinking Americans would never wish to venture down. Court cases as with the Constitution are written by men, but while the Constitution was passed by a large majority and ratified by the states, court cases are often decided by a panel of judges with a bias who do not have to answer to anyone. We ASSUME that such people are fair and unbiased, but since the beginning of this country such assumptions have been incredibly wrong. Many times have decisions been overturned at all levels. One judge decides one way then an appeal at another level to another judge may lead to a different result. Court decisions ARE NOT EQUAL by any step of the imagination! To make the case of such makes it clear that you think like many people who wish to circumvent the law by one decision. What if a decision overturned another and your argument went to bunk? The Constitution has never been in question Frank, but court decisions are NEVER set in stone. So do not try to convince the people of the Constitutionality of an argument via court cases because you will lose every time… Please learn that lesson as far to many people do this around me…

      Your last argument talks about the case that the Federal Government will make on this law Obama signed. It seems your main argument is about discrimination. Isn't this the same tired argument that all democrats make about a law in this country. But…but…it's discrimination against blacks….against minorities….etc… If I disagreed with Obama I was discriminating against his skin color. Now, since the law exists, I am discriminating against minorities… Yeah, I've heard that tired argument before, and it doesn't hold up in court oftentimes.

      Lastly, you make an argument at the end that we should spend money on healthcare rather than bullets. While I am not in favor of an endless war, I do believe in finishing the job and passing on the reins to the people of Iraq when the right time comes. As for healthcare spending, you would suggest we spend more money we don't have to insure a lot of people who don't contribute to the tax pool.

      This bill is simply socialism. To make it clear to people, socialism by definition is a political theory advocating state ownership of industry. The government just took over healthcare by mandating people buy private health insurance. I know someone in the market who says the new bill will run the industry out of business if not repealed within ten years. When this happens, the democrats will fix the problem by establishing government healthcare insurance. At this point, people will rely on the government for healthcare, and when we rely on the government for healthcare, they can tell us what we can and cannot have and how much. I will give you an example. The government could say Republicans who need healthcare don't deserve it. Then, they will take it away from them. This is extreme, but let me give another example. All people who eat out more than twice a week won't get government healthcare. The government could put stipulations on what is and is not covered and who is or is not covered. The establishment of the very tyranny that the founders of this nation laid out in the Constitution and the Federalist is possible as a result of this bill. No bill before this has ever given the government that kind of power over people's lives before.

      Think before you post Frank because if you consider the argument I have made you would understand why the majority of this country has a complete disregard for this President and this set of Democrats in Congress. This bill has several close if not exact violations to the ORIGINAL Constitution that was signed by many men and ratified by every state. You can write with a bias naming court cases, but court cases are a weak and perishable argument against the real Constitution. Please people educate yourself and read the Constitution. Then read this bill and critically consider if this systematic takeover of our healthcare system is really best for the people of this country. Look at Great Britain, look at Europe, look at Canada… Socialistic healthcare didn't turn out too well for any of them…

    18. Ramona Roadifer, Custer, SD says:

      I heard that there is no severance claus in this health care bill. Is this true? Thank you for allowing me to make this comment a question.

    19. Nancy whitt says:

      The American people are not going to stand by and let the goverment return us to poverety and slavery what he thinks is right is not what we think is right we are a Free America and he can t just come in and walk all over us throwing elaborate parties spending money and traveling like its free,we go to bed at night eating beans soup or sandwiches and hes printing money like there is no end to it.We and our fore fathers fought for freedom and died and he cant treat us like we are his puppets Obama has a sick agenda and he puts people that are sick minded like him in office to serve him.I will never serve him I am a Americqan and a christian ,,,christian comes first I think he is under estimating the American people we will come out fighting we need tro get him out of office and get someone in there that cares about our fore fathers and constituion.HE IS NOT EVEN AN AMERICAN so why is he running our country???? get out O bama we dont want you you are a liart and a cheat and power hungry

    20. Frank Chiaramonte, U says:

      Mr Kelly. i am just a student, not a professor but I think you need a quick course in how the Constitution and law works in this country before you further embarrass yourself in front of people who know what they are talking about. I'll admit my bias, I am in favor of the bill for personal and political reasons. I think it will improve our economy and expand coverage while reducing huge profits for unaccountable corporations. That aside, the issue of the States' Attorney Generals' challenge to the bill is a legal one. The AGs are filing suit in federal court alleging that the bill is unconstitutional. Assuming that the case reaches the Supreme Court, which i believe it certainly will, there will be a trial, and its result will be final.

      In the trial, the attorneys for the states (plaintiffs) and the attorneys for the federal government (defendant) will try and persuade the court that the bill is either Unconstitutional or Constitutional, respectively. I promise you that the issue is going to come down to the Commerce Clause (Article 1, Section 8, paragraph 3). The article even says that the issue is the Commerce Clause. To prove that the Commerce Clause denys the bill's constitutionality, the States are going to use CoUrT CaSeS. That is how our legal system works. Your friends the AGs are going to try and use the rule from Lopez and Morrison. those cases are your friend, so you should avoid saying that previous court cases are garbage. The Constitution is defined by Supreme court decisions. Even Originalists have to face that, because that is how it is.

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    23. Morgan says:

      Chiaramonte is right about the way the constitution works, but I would put it more simply: "The constitution says that the constitution says whatever the Supreme Court says it says." That is the reason why the nomination of SC judges has become such a controversial and divisive issue. No one should get on a high horse about constitutionality. Anything the supreme court decides is constitutional is constitutional.

      I don't like the bill. I think our health care system does need an overhaul and that government could play a useful role in improving it. However, this law will mostly not improve the efficiency, effectiveness, or equity of that system. We could have done better if it had not been done in such a hurry and with so little regard to public sentiment.

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    26. Bill Bro says:

      My motive for opposing ObamaCare is essentially a selfish one: as a leader of a cancer charity, I know that patients like me (those affected by rare and deadly cancers, such as renal cell carcinoma) are often simply kicked to curb and denied anything resembling adequate care.

      Such is the case in the United Kingdom, Canada, and most countries where the practice of medicine is socialized. If the United States of America chooses to follow a similar path, thousands more cancer patients will die each year than is now the case.

      Such is the inescapable reality when one applies wealth redistribution principles to the health care of a nation the size of ours. Given that our country is considerably larger than either the United Kingdom or Canada, I expect a far more devastating result here. If we don't repeal this abomination, we'll surely wish we had.

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    28. Frank Pelosi, Plaist says:

      I was just notified by my medical insurer that in Jan 2011 they will no longer offer Medicare Advantage insurance plans. I am having a difficult time finding an insurer with a comparable plan that I can afford or a doctor that will accept the new insurer. There are over 3 million seniors in a similar position Obamacare must be repealed immediately

    29. Swampfox says:

      A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), was a decision by the Supreme Court of the United States that invalidated regulations of the poultry industry according to the nondelegation doctrine and as an invalid use of Congress' power under the commerce clause. Notably, this was a unanimous decision that declared unconstitutional the National Industrial Recovery Act, a main component of President Roosevelt's New Deal

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