Why States Rights Will Lose Again

This from 2 state Attorney Generals (of Ohio & Iowa)

Why we won't file states' rights suits By RICHARD CORDRAY & TOM MILLER

Richard Cordray and Tom Miller say they have no legal reason to challenge the new health reform law.

The new health care reform law has already become the target of multiple lawsuits, including many filed by public parties.


Some are arguing that the new law is unconstitutional because Congress lacks authority to address the health care issue by mandating coverage and that people have a right to refuse to buy health insurance. Others see it as an affront to their basic freedoms.


As attorneys general for our respective heartland states, we take issue with the constitutional arguments being made against this new legislation. Under long-settled Supreme Court precedents, Congress has ample power under the commerce clause of the Constitution to legislate on health care.


Congress has the authority to regulate anything that affects interstate commerce “among the several States.” This is bolstered by the supremacy clause, which explicitly makes the Constitution and the laws of the United States “the supreme Law of the Land” for all Americans.


For Congress to have the power to pass this legislation, therefore, the health care problem need only affect interstate commerce. It clearly does.


Health care now accounts for one-sixth of our gross domestic product. The costs of health insurance pose fundamental economic challenges to the competitiveness of our American common market.


We need only look at the existing Medicaid and Medicare programs to see that this issue is national in scope. If the commerce clause authorizes Congress to prohibit the cultivation of marijuana for personal medical use because it has economic effects, as the Supreme Court ruled in Gonzales v. Raich, then surely it authorizes Congress to regulate health care.


But critics contend that the federal government lacks the power to address this problem.


Why?


Are they telling us that only state governments can address it? Or that nobody can? If the argument is that nobody can, experience shows this is wrong.


The “individual mandate” now drawing so much attention mimics a law already on the books in Massachusetts — a law broadly accepted and never invalidated by the courts.


And there is a good reason for that requirement. When an uninsured person ends up in an emergency room needing urgent and expensive treatment, someone has to pay for it — through either higher premiums or higher taxes — and “we” are that someone.

By RICHARD CORDRAY & TOM MILLER | 4/2/10 3:00 PM EDT Text Size- + reset

Richard Cordray and Tom Miller say they have no legal reason to challenge the new health reform law.
AP photo composite by POLITICO
That is also why state laws require many millions of Americans to have car insurance — a few irresponsible citizens should not be allowed to heap the costs of their behavior on the rest of us.


For those who contend that the states alone can address these kinds of insurance problems, their logic condemns us, forever, to an unsatisfactory “patchwork quilt” of conflicting provisions and mixed results.


Yet this is why our Founding Fathers rejected the anemic Articles of Confederation as inadequate and authorized Congress to legislate on matters of interstate commerce — and then made the laws supreme, despite any state laws to the contrary.

Nobody can seriously argue that the health care industry operates only in “intrastate” commerce and that the mandate provisions in this bill cannot be effectively disentangled from the comprehensive economic approach that Congress adopted to fix the deep flaws in our current health insurance system.


We live under mandates every day. Without them, society as we know it would disintegrate. Every criminal law tells us what we cannot do.


And sometimes the law tells us what we must do. Congress can require young Americans to register for the draft to serve in the military, for example, or can require us all to pay taxes for programs like Social Security and Medicare.


We can — and do — argue about what shape these laws should take, without claiming that our leaders are constitutionally barred from dealing with our most pressing problems.


Instead of pursuing lawsuits, we should work to find ways to improve the lives of the American people and protect our four most fundamental freedoms: of speech, of religion, from want and from fear.


As President Franklin D. Roosevelt told us in articulating these freedoms, this is “no vision of a distant millennium. It is a definite basis for a kind of world attainable in our own time and generation.”


We are still striving to shape that new world.


Richard Cordray is the attorney general of Ohio, and Tom Miller is the attorney general of Iowa.