Colorado Attorney General joining a national lawsuit against HCR

[DearAbby]

Colorado Attorney General John Suthers is joining a national lawsuit to try to block federal health care legislation -- over the objections of Gov. Bill Ritter and the Democrats who control the state Legislature.

Suthers said Monday he would join fellow Republican attorneys general in at least nine other states in opposing the bill because he thinks a provision requiring most Americans to purchase insurance is an unconstitutional expansion of federal power. Congress has the right to control interstate commerce but can't force people to participate in commerce, he said.

"Never before has Congress compelled Americans, under the threat of economic sanction, to purchase a particular product or service as a condition of living in this country," Suthers said.

Republican state lawmakers had called on him earlier in the day to join the lawsuit. But Suthers, the only Republican elected to statewide office, said he reached his decision on his own and said it wasn't politically motivated.

Melissa Hart, associate professor at the University of Colorado and director of the Byron White Center for the Study of American Constitutional Law, disagreed with Suthers' interpretation.

"I think it's a very radical interpretation of the 10th Amendment," Hart said. "I think it will fail and I think it's very political."

Hart says the language in the 10th Amendment is very open-ended and could mean a lot of different things, but added that Suthers' interpretation was "very aggressive."

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http://www.democraticunderground.com/discuss/duboard.php?az=post&forum=389

[DCBob]

1. Axlerod said WH counsel looked at this issue and cleared it..

It has been thoroughly examined and deemed to be legal. The Republican AGs are wasting time and money on a politically motivated witch hunt.

[notesdev]

4. I'm sure

that they'll take Obama's senior political advisor's word for it.

not

I'm with the AGs on this one, I can't see anything in the Constitution that allows the government to force people to buy a product from private companies (at outrageously inflated rates, no less). Fedgov is way outside its bounds here.

Glad I live in Virginia, where this bill is already declared illegal.

[DCBob]

7. You think the WH would risk pushing this if there was any possibility of it being unconstitutional?

I'm with the WH counsel on this one.

[notesdev]

8. Absolutely

Remember both houses of Congress passing (bipartisan-like and all), and President Bush signing, BCRA (2002) while swearing that SCOTUS would overturn it?

The Constitution isn't even a set of rough guidelines to the DC elites, they will do whatever the hell they want to do.

[DCBob]

9. I am still betting on the WH on this one..

It would be political suicide to push this so hard and risk losing it all in the courts.

[notesdev]

14. It's already political suicide

For one, most of the country doesn't want this, so this was a sacrifice of most of the contestable races this fall. Two, it was ugly, real ugly. Three, there are going to be a shit ton of unintended consequences to this bill, and many of them will be quite immediate unless the courts issue a stay.

[DCBob]

21. The polling on this issue is bogus... The disinformation campaign was relentless..

The vast majority of Americans have no idea what is in this bill and what it will do. In addition to being good for America, I believe its also political gold. By November, voters will love health care reform and the Democrats. Many of the benefits of the bill will begin to be seen almost immediately and none of scary stuff that the Republicans were warning/lying about.

[Statistical]

27. It wouldn't be losing ALL of it. Just the mandate.

The federal govt most certainly has the delegated power to regulate commerce.

However the question in the lawsuit is do they have the power to regulate "non-commerce". Can the govt force (or coerce via punitive taxation) you to purchase a product or service in the name of "regulating commerce"?

The lawsuit is not against entire HCR simply the mandate on purchasing product from a private third party.

Ironically a public option or single payer wouldn't be subject to this lawsuit. :)

[DCBob]

28. Without the mandate it wont work.. that's the key to paying for it.

Its the healthy subsidizing the sick. Without that we would have to raise taxes astronomically and nobody wants to do that.

[Statistical]

29. A public option with single risk pool and subsidies for lower income would work.

Even without mandates. People will choose a product if it is a good product.

Nobody forced me to buy life insurance. Nobody forced me to buy a safe car. I bought those because they provide value.

[DCBob]

31. Maybe, but thats a total rework of the plan.. not sure how that would all play out..

The more likely scenario is that the current bill gets signed into law and the courts battle it out for years.

[Statistical]

32. Oh I agree it will be signed into law.

The lawsuit can't be filed until it is signed into law. You can't sue about something that will or could happen.

What is also strange is usually you need to suffer a harm to file a suit. Example: in Heller v. DC Mr. Heller attempted to register his firearm and was denied thus he suffered a harm. Many other people in DC would have "liked to register a firearm" but their cases were dropped. Wanting to do something is not a harm.

Since mandate doesn't go into effect until 2014 one could argue that nobody will suffer a harm until 2014?

[DCBob]

34. Exactly.. thats what makes me think the threats of lawsuits are bogus..

and total waste of time and money... at least at this point.

[Statistical]

35. Then again I am not a lawyer so I don't know more than a laymans understand of "standing".

They may have standing simply because the bill is universal. Since there is "no escape" from the bill everyone will be affected thus everyone has standing.

If they have no standing the lawsuit will be very quick. It won't survive first motions. The federal govt won't even argue the merits of the case rather they will attempt to dismiss due to lack of standing.

[DCBob]

36. I dont know enough to comment on that but...

I also heard they were going after the unfunded mandate issue.. ie. the plan would force the the states to spend a ton of money but not be funded. I still think they are all blowing smoke. We shall see.

[Statistical]

37. Well if I was a state legislature facing a budget crisis I would be pissed about unfunded mandates.

People in Washington telling the state they must do something and then saying "you figure out how to pay it".

I don't know if there is an unfunded mandate in HCR bill. I know roughly half the 30 million uninsured will go to state Medicaid programs but feds are providing some funds. Is the funds >= cost of adding 15 million to medicaid?

[DCBob]

39. Here's a good article discussing this issue..

http://news.yahoo.com/s/ap/20100323/ap_on_re_us/us_health_care_last_stand

It does sound there is nothing the states can do, at least until 2014 when the individual mandates kick in. These lawsuits now are likely bogus and for political show only.

[WeDidIt]

10. Taxation is an absolute power of the federal government

and all that happens if you don't buy insurance is you pay a tax.

100% legitimate use of the commerce clause and taxation capabilities.

If this is overthrown by the SCOTUS then the higher tax for single people gets thrown out, too, as that tax break for married people is compelling people to get marriesd.

[Leopolds Ghost]

15. Disparate treatment in taxation that benefits private parties is unconstitutional.

You can't pass a tax the net effect of which is, for instance, to tax people who shop at big box stores.

[Statistical]

23. Govt ability to tax is not unlimited. Disparitive or punative taxation

has been found Unconstitutional in the past.

Would a tax that requires you to purchase 10 CD a year or pay a $200 tax be Constitutional? I mean after all some Americans pirate music and that hurts record companies.

Would a tax requiring you to purchase a new car every 5 years or pay a $10,000 tax be Constitutiona? The auto companies could use the artificial "stimulus".

Pst: There is no higher tax for single people. There is a marriage penalty which was removed from lower tax brackets (but still exists for higher brackets). Compare single vs married filing jointly tax brackets.

[hlthe2b]

18. Good Lord... You are support of that gang of moronic thugs in VA?

Those racist homophobes in the GOvernor's, AG offices and the legislature? Enjoy...:eyes:

[Bluenorthwest]

30. You do know this 'reform' bill discriminates against gay families?

So why don't you stow the painting of others as homophobes, considering the Democratic bill continues and expands the discrimination against gay people in this nation? Co-opt something else. Obama stands in public and says he is opposed to equal rights for gay people, because of his religion. So I guess homophobia is not just for VA anymore. Time to own the facts.
This bill you dance about will discriminate against my family. We will pay more, get less. To serve the religious nuttery of Kaine and Obama and other bigots in the DNC.
And you seem to support this religious dogma based discrimination against millions of Americans. So sure, the GOP are bigots. But they are not alone.

[hlthe2b]

38. I don't even know where to begin...

if you are supportive of the Governor and AG of Virginia... What's the old adage? The imperfections of my supporters must drive me into the hands of my mortal enemies? The logic escapes me.


Not worth my time.

[Abq_Sarah]

2. I hate to think

They can use the interstate commerce clause to force us to engage in private commerce.

[Leopolds Ghost]

16. One legit point, which unfortunately is being advocated by RW scum

Who support corporate fascism:

The American Revolution was a revolt against mercantilism.

The current bill is not liberal, socialist, or capitalism. It is mercantilism.

A mercantile corporate state.

[Abq_Sarah]

40. I don't give a shit who advocates it

If some dumbass on the right says murder is bad, I'm not going to suddenly proclaim it's good.

[tsuki]

3. Awesome. Throw that money away and shut down street lights, lay

off firefighter and police, forget fixing the roads, let the parks turn into dust bowls from lack of water, then close them.

Seems that the politicians always have the money to play political games.

[Bitwit1234]

5. States can't control the federal government

There is no way they can make the federal government give in to them. Even asinine Bill Frist said they were wasting their time.

[Statistical]

24. Exactly which is why they are SUING the federal govt.

A federal court has the ability to deem actions by federal legislature Unconstitutional.

The AG filing suit is no different than your neighbor filing suit they simply have more resources at their disposal.

Nullification is not prohibited in the Union. Suing the federal govt in federal court is.

[KharmaTrain]

6. These People Are Like Programmed Zombies...

(as opposed to those with free will??)...everything is so orchestrated and lock-step. Be assured this is not some spontaneous "outrage" but yet another political stunt to milk this issue among the great unhinged.

They can posture about it today...but when people start seeing the sky didn't fall and maybe there's a benefit in it for them, the suits will quietly fade away.

But in the meantime, it sure gives a bunch of eager GOOP beavers something to solicit cash with and build up their "cred" with the great unhinged.

[kimmylavin]

11. Honest question.

I tried to have some folks explain this to me, but as far as I could tell, they were just making stuff up as they went along. My question is:

By what authority is auto insurance mandatory?
And is that the same authority dictating mandatory health insurance?

It seems to me that auto insurance IS something that we are compelled to buy, definitely under threat of economic sanction, as a condition of driving in this country.

I don't necessarily have a problem with it; one major accident that could have completely wiped us out financially - for several years - was taken care of with a $320 layout from me - and over $10,000 paid out by eSurance. (My medical bills, of course, are another story - even with what would be considered very good health insurance...)

I'm just wondering if this is a similar situation.
Any explanation would be much appreciated.

[Statistical]

25. Reserved Powers vs. Delegated Powers.

Not well understood but States have more leeway than the federal govt.

The Constitution defines the powers of the federal govt. These are delegated powers. The federal govt MUST have a delegated power to take action.

The Bill of Rights also deems some powers are prohibited. For example the power to seize firearms or form a state church are prohibited powers.

The balance of power is called reserved powers.

the 10th amendment:
"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."

Anything not delegated to the federal govt is reserved by the States.

So if you imagine the sum of all possible powers in the universe

Delegated Powers - powers granted to federal govt
Prohibited Powers - powers that no entity can possess
Reserved Powers - everything else

So the federal govt must have delegated power to do ANYTIBNG. The federal govt believes it has power via the commerce clause to regulate insurance.

Commerce Clause:
(The Congress shall have power) To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

So Congress can regulate commerce between states. The question is:
Is "non-participation" commerce? If I buy insurance that is obviously commerce. If I don't buy insurance is it still commerce. Can the federal govt regulate the "lack of commerce".

If they can then the mandate is Constitutional.
If they can't then the mandate is Unconstitutional.

Note: this is simplified version I glossed over some stuff to avoid it being 5 pages long :).

[jtb33]

41. Ah, BUT...

You can avoid paying for auto insurance. 1 - Don't drive. 2 - Just don't buy it.

There isn't any way to avoid paying for the mandated insurance. 1 - Don't live? Sure, I guess. 2 - Just don't buy it. Ok, but opting not to buy it means that you now have to pay a fine (each year you don't have it).

[peekaloo]

12. The fact that Florida's AG, career politician Bill McCollum is involved

is mere testament to the fact that it's a big ol' money/time waster. Monkey face is running for Governor and he likes nothing better than a high profile jerk off to get his name/fugly mug in the papers. JIC anyone needs proof please see the S&L scandal from the '80's AND check the Clenis for his fingerprints (oh yeah LOTS of outrage over the blow job!).

[Leopolds Ghost]

13. Do supporters of the HCR mandate agree with the Kelo opinion?

The Supreme Court already declared Corporate Feudalism constitutional through the Kelo ruling --
they did so a number of times back in the 19th century, too, when they excused direct excise of
land by the railroads on the basis that the railroads were essential to the economy.

If so then they should agree with the Admin. I'm sure the current Admin has no problem with the Kelo case.

[Leopolds Ghost]

20. You guys do remember the Kelo case, don't you?

As I recall, the same people cheering HOPE VI cheered the Kelo case and are cheering this bill now on the same argument, that privately financed economic services that positively benefit the few count as a public good.

[spanone]

17. they really do hate america, don't they. politics trumps healthcare for americans.

[Leopolds Ghost]

19. Does Melissa Hart believe mercantilism is constitutional? n/t

[glinda]

22. What gives these Attorney Generals and Governors the right to decide for the their whole States?

I find it an abuse of power to just go "rogue" and do this against the wishes of the majority of the people.

[Froward69]

26. DU the poll...

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x7994059

[The Genealogist]

33. I can see how this could be a win-win situation for these RW AGs

If they win this case, they get to gut this bill. If they lose, they get more ammo for the "activist librul judges" guns. Knowing the track history of the M$M, I am sure that if they case never makes it out of the first court room it is tried in, they will leave out the issue of how frivolous and politically motivated these lawsuits are. I hope the Dems are ready to do some serious damage control on this.