Saturday, March 27, 2010

Commandeering the State Legislatures

A number of states are considering suing to enjoin, or otherwise block enforcement, of the health care reform bill. The basis of the legal claims are constitutional. Let me review the issues briefly.

SUITS AGAINST: All of the suits I have heard would have to be based on the 10th Amendment. Here it is (since you have probably never heard of it, unless you are a lawyer)...

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Is the power to force individuals to purchase insurance, and to have that power enforced by state police and state courts, expressly delegated to the federal government by the Constitution?

On its face, no, but not so fast. Most of the expansions of federal power have been justified by invoking the "commerce clause" and the "elastic clause" of Article I, Section 8 of the Constitution.

Congress shall have the power....

Commerce clause: To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

Elastic clause: To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

So, medical insurance is private commerce, many companies operate in multiple see where this is going. The fact that the Constitution does not specifically mention health insurance means nothing, bubkes. There is plenty of commerce clause and 10th amendment jurisprudence that would make the health care reform bill seem like a slam dunk for being clearly constitutional.

But...once again, not so fast.

There is one line of cases that would suggest that some aspects of the legislation are in fact unconstitutional. And they are recent. The Rehnquist Court did a LOT of work in 10th amendment stuff, and there might be a chance here.

Sandra Day O'Connor wrote a really important decision in the case of New York v. US. ( MORE BACKGROUND, AND THE DECISION). I used to study radioactive waste disposal, and so I know more than I should about this case, and this issue. (Yes, I know, SDO? But, yes. She was clear on 10th amendment issues, with a bias toward protecting the states. She wasn't clear on much else, but on this....clear).

From the decision SDO wrote:

As an initial matter, Congress may not simply "commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program." Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 288 (1981). In Hodel, the Court upheld the Surface Mining Control and Reclamation Act of 1977 precisely because it did not "commandeer" the States into regulating mining. The Court found that "the States are not compelled to enforce the steep-slope standards, to expend any state funds, or to participate in the federal regulatory program in any manner whatsoever. If a State does not wish to submit a proposed permanent program that complies with the Act and implementing regulations, the full regulatory burden will be borne by the Federal Government.

So, does the health care reform bill "commandeer" the state legislatures? That is the direction petitioner / plaintiffs will have to go.

DEFENSE: On its face, since the court now seems more conservative than in 1996, given the recent Heller and Citizens United decisions, won't the suits win, and won't HCR be struck down.


Two things. First, Sandra Day O'Connor was against the 2nd Amendment interpretation in Heller, and against the 1st Amendment interpretation in Citizens United. Her departure made way for the new, more conservative, court. But she was VERY conservative on 10th Amendment grounds. Both Alito and Chief Roberts are NATIONALISTS, much weaker on 10th amendment issues than O'Connor. (Imagine that you had taken Patrick Henry off the court, and put on Alexander Hamilton. That's an exaggeration, but you get the idea.) The point is that this new court is actually MORE likely to side with the national government.

It may come down to whether the Alito - Roberts bloc votes its real principles or not.


Anonymous said...

"the States are not compelled to enforce the steep-slope standards, to expend any state funds, or to participate in the federal regulatory program in any manner whatsoever. If a State does not wish to submit a proposed permanent program that complies with the Act and implementing regulations, the full regulatory burden will be borne by the Federal Government."

So are the Real ID Act, NCLB, and all other unfunded federal mandates also unconstitutional, according to her standards?

John Thacker said...

I've always assumed that Justice O'Connor was a big 10th Amendment / federalism person because she actually served as a state (not national) legislator.

Carl Edman said...

With all due respect to the blog's author (considerable) and due contempt for ObamaCare (bottomless), this lawyer is not sure he understands the argument.

What in ObamaCare forces state legislatures to pass any law? Or state agencies or law enforcement to enforce any part of ObamaCare?

ObamaCare is federal law. It will be enforced by federal agencies, among them the Dep't HHS and the IRS. If state legislatures want to sit on their hands and state agencies don't lift a finger to help enforce ObamaCare, it will not stop it--it will hardly impede it.

So I just don't see how the Printz/New York non-delegation type doctrine could possibly apply here.

The only conflict that arises is the classic federal/state conflict: Where federal law demands that a citizen take an action (involuntarily purchasing health insurance) and state law prohibits it. And every such case is won by the feds on Supremacy grounds. (The Feds can still lose if the federal law itself is unconstitutional--but whether a federal law is unconstitutional is completely independent of the existence or non-existence of a contrary state law).

What am I missing?

Mungowitz said...

Carl: I don't disagree with you, at all.

My claim was that this is the route the suits will HAVE to take. I don't think they will succeed.

This is what (for example) the Virginia AG said:

During a public address yesterday, Cuccinelli argued that the new legislation violates the U.S. Constitution, as it exceeds powers granted to the federal government through the Commerce Clause. In addition, he said, the health care legislation contradicts the Virginia Health Care Freedom Act, which was signed by McDonnell yesterday and protects Virginia citizens from being mandated to purchase health insurance. The act also provides standing for the state to challenge the federal legislation, and Cuccinelli expressed hope that courts will rule the federal reform package as unconstitutional. Thirteen other states have filed similar lawsuits challenging the health care legislation.

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