Mandate This!

The Colorado legislative Republicans held a press conference this afternoon to announce that they had sent a letter (text below the fold) to Attorney General John Suthers, asking him to join with other states’ attorneys general in challenging the constitutionality of the individual health mandate here in Colorado.  Jon Caldara of the Independence Institute joined them, making an impassioned plea and invoking, as he has recently and reluctantly, his heroic son who has undergone 9 life-saving surgeries in his 5 years.  The legislators also pointed out a number of bills that the current Democrat majority has killed this session, including, reviewing new health care manates for cost and individual deductibility of health insurance.

The presser went on for a little over 20 minutes, so it’s in three segments:

For the record, the legislators were quite clear that they were signing sending the letter, and had not coordinated with the Attorney General in advance.  In fact, I saw the letter delivered with mine own eye, since I had headed over to the Law Office for…

About 90 minutes later, Attorney General John Suthers announced that he would, in fact, be joining the lawsuit.   The lawsuit not only challenges the constitutionality of the individual mandate, but also of the IRS enforcement of that mandate, the fine they’d be able to impose, under the guise of a tax.  While the Congress can regulate insterstate commerce, it can’t regulate commercial inactivity, which is what this bill tries to do.  In addition, the legislation mirrors what the Democrats here in Colorado have done by labeling “taxes” to be “fees,” in this case, labeling a fine a “tax” in order to give jurisdiction to the IRS.  As Randy Barnett points out, this essentially would give Congress the power to regulate anything, and the IRS power to enforce it.  Moreover, the tax, even as a tax, would violate Article I Sections 2, 8, and 9, which provide that any direct tax has to be proportional to a state’s population, not tied to an individual’s economic (in)activity.

Regardless, this collective action is almost certainly only the first of many that will be filed, both by the states and by third parties.

I hate to turn this into a media criticism piece, but the fact that Congress can’t regulate anything, and that the IRS can’t enforce it seemed to be unexplored territory for the other reporters in the room.  One lady tried twice to understand why this was different from the state requiring auto insurance (hint: the federal government isn’t a state, and there’s an action tied to car insurance, i.e. operating your car; merely being a breathing citizen isn’t sufficient justification for mandating interstate commerce, or punishing the refusal to participate in a market.

Second prize goes to Eli Stokol of Fox 31, who left the room convinced that this was a political decision, because thus far, only Republican attorneys general were involved.  The notion that the lack of participation by Democrats could be just as political apparently didn’t register.  Also, there are very liberal Democrats who don’t buy the mandate (so to speak) for a slightly different reason, that the government can’t force you to buy a private product, such as professor Tom Russell of the University of Denver School of Law.  (Mr. Russell ran in last election’s primary for HD-6, as it happens.)

Young Mr. Stokol also asked why, if the 10th Amendment were applicable, why it hadn’t broken through in discussion before.  The answer is that it has, and that if he had showed up having done his homework and done any sort of reading on the legal matters on display he’d know that.

The videos of the presser are here.

Dear Attorney General Suthers,

Last night Congressional Democrats in Washington D.C. rammed government mandated health care down the throats of the American people.  We believe this violates the Constitution of the United States and urge you to band together with attorneys general from other states in a collective lawsuit to stop the federal government from overstepping its constitutional powers and usurping the authority of the states. 

In December, you signed a letter berating the Senate version of the health care bill for affording special treatment to the state of Nebraska under the federal Medicaid program.  At the end of the letter that you signed it said “we do not suggest there are no other legal or constitutional issues in the proposed health care legislation.”    

Under the new bill everyone will be required to buy health insurance.  We believe Congress lacks the authority under its constitutional power to regulate interstate commerce to force people to buy insurance.   If a person decides not to buy health insurance, by definition that person is not engaging in commerce.  If you are not engaging in commerce, how can the federal government regulate you?

In the aftermath of this bill’s passage, the burden of providing health care will undoubtedly fall on the states without the necessary federal support.  This is the largest unfunded mandate in our history, one that The Heritage Foundation says will cost Colorado nearly $650 million over the next six years. 

Attorneys general in Alabama, Florida, Nebraska, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington have all warned that they may file lawsuits against the federal health care bill.  We hope you will consider joining them.

We also know you are trying to work with the Governor on this, and to the extent that he is willing to help us, his support is welcome.  However, should he choose not to support a lawsuit, we hope you will move forward with one regardless of his position

 Thank you in advance for your favorable consideration, and we look forward to hearing from you.

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