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'Constitutional yearning'

"What Cuccinelli is doing transcends legal activism—with which I have no quarrel—and places him squarely in the world of constitutional yearning. That's a particularly cynical enterprise for someone who preaches fidelity to the law and Constitution as they are written."

That's Dahlia Lithwick, who's not terribly impressed with Virginia attorney general Ken Cuccinelli's effort to nullify federal law for political gain.

By Ezra Klein  |  March 30, 2010; 9:08 AM ET
 
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Comments

Lithwick writes: “Given the relative novelty of the individual mandate…”

Novelty? You mean that for the first time the Federal Government believes the Constitution grants it the power to require citizens to purchase a particular product? That’s a “novelty”?

“… and the fact that the current Supreme Court is as conservative as it's been in nearly a century, …”

The SC is barely conservative, 5-4, and not on every issue. If it’s’ true that we haven’t had more than five conservative justices on the SC at any one time over the last 100 years, then that may explain much of the mess we’re in today.

“When TV pundits or politicians argue about what the Constitution should say, it's one thing.”

No, it’s a completely different issue. The issue here is what the Constitution does say, not what one thinks it should say.

The 10th Amendment states: “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.”

The power to require citizens to purchase a product was not enumerated to the Federal Government in the Constitution. Therefore, per the 10th Amendment it must reside with the states or the people.

Posted by: MDLaxer | March 30, 2010 9:24 AM | Report abuse

Who is it that doesn't want Health coverage at any price, and why do they need to be defended?

Posted by: JkR- | March 30, 2010 9:29 AM | Report abuse

@ MDLaxer : What about "promote the general welfare" as a constitutional justification for creating policies that make universal health coverage possible. Works for me.

Posted by: srw3 | March 30, 2010 9:33 AM | Report abuse

Cuccinelli's complaint isn't the greatest legal writing I've ever seen; however, unlike Florida's complaint, the Virginia suit refrains from pleading that the state will not withdraw from Medicaid and thereby eliminate most PPACA requirements.

For some states, it is cheaper to refuse Federal Medicaid funds than it is to accept them and, in doing so, assent to the PPACA requirements: the federal authorities have power only when federal funds are accepted, so a state that wants to build its own indigent health care program are still free to do so.

Ultimately, either (a) the litigation against the PPACA will succeed or (b) some states will for financial reasons necessarily drop out of Medicaid, leaving uninsured millions who would have been insured had the PPACA not been enacted.

Posted by: rmgregory | March 30, 2010 9:39 AM | Report abuse

@rmg:(b) some states will for financial reasons necessarily drop out of Medicaid

Talk about cutting off the nose to spite the face...You know it is only republican governors that are willing to deny their constituents medicaid to make a political point. I wonder what they will do when their hospitals are overrun with former medicaid patients that need care for chronic or acute conditions. what will these people do for medications? Their deaths would be on the governor's heads.

Posted by: srw3 | March 30, 2010 9:45 AM | Report abuse

when I was younger, it's fair to say that I was constitutionally yearning. On a good day, even now!

Posted by: bdballard | March 30, 2010 10:17 AM | Report abuse

MDLaxer: "The power to require citizens to purchase a product was not enumerated to the Federal Government in the Constitution."

Well, that's the question. First, it's not "enumerated," it's "delegated." Second, it could be "delegated" under the Commerce Clause. Third, the mandate is set up as a tax, which is a power of the federal government.

The 10th Amendment argument is an empty one. It just says if the federal government can't do something, then maybe the states or the people can. But it doesn't address the issue of what the federal government can or can't do, which is dependent on the rest of the Constitution. If the federal government can't do something, then it can't do it regardless of the 10th Amendment which neither expands nor contracts those limits.

Posted by: dasimon | March 30, 2010 10:21 AM | Report abuse

I like the phrase "constitutional yearning." For many the constitution is a metaphor. It represents purity and perfection and they take oaths to it like they force their daughters to take purity vows. But they are not serious when they say they wish to revert to the meaning of the original founding fathers. Just ask "which one?" and you will know all you need to know about these "originalists."

People are scared and they are reaching out for something.

Posted by: luko | March 30, 2010 10:38 AM | Report abuse

Our Constitution, as it was drafted, was to provide for a limited central government, with emphasis on giving the majority of the power to the States with certain powers being given to the central government. Most of these powers being listed under Article 1, section 8 of our Constitution. Hand-in-hand with our Constitution, we must also cite the various amendments to such.

The first paragraph in Section 8 is a reference to the Congress having the power "To lay and collect Taxes, Duties, Imposts, and Excises, to pay the debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts, and Excises shall be uniform throughout the United States."

Section 8 then goes on to enumerate very specific points for the authority of the United States. Nowhere in Article 8, or in any Amendment, does it state that the federal government, the "United States," have a direct duty to "provide for the health of the citizens of the United States." To cite a law as being good for the "general Welfare" of the people, but with no specific backing for such law, I would personally consider it un-Constitutional for the United States to establish such law without beforehand establishing an Amendment to the Constitution.

Such powers as being specifically enumerated by the Constitution and certain Amendments, and not denied to it by the States, are left to the States and the people by our Tenth Amendment.

If we, as a Republic, are to continue telling the United States we want it to provide us entitlements to health care and other such things, it is no longer a limited central government, but an all-powerful one, now to provide us the "freedom" from struggling for our earthly wants, and beyond the scope of the Constitution itself. A government that acts without express agreement to the rule of law is a tyrannical one, thus the cries of "tyranny, tyranny!"

Experimental legislation such as this was intentionally left to the States by the Constitution. If everybody wanted the State to provide for their health care, do you not think we would be moving to Massachusetts or Oregon? I would rather my State produce additional regulations on our regional/local insurance companies than have the Federal government tell me I must purchase a good or service to help provide for the "general Welfare" of the people, and indeed, myself, or face a tax on what was, before-hand, not considered a taxable action(I.E. not participating in commerce).

Posted by: OfConservativeMind | March 30, 2010 4:11 PM | Report abuse

I'm from Oklahoma, BTW, and I definitely need to start looking more strongly at the legislative policies of my State. Due to the power and scope of our United States government, however, I find myself being drawn to the national level of legislation and politics.

Posted by: OfConservativeMind | March 30, 2010 4:14 PM | Report abuse

Also, I must stress the fact that I do not disagree with individual States providing for the medical care of indigents or the production of medical services for other classes of individuals. I mainly disagree with the United States government meddling with the affairs of the States, and producing massive bureaucracies(which require additional taxes for funding) for the oversight of its various illegitimate programs and laws(once again, those having no strict basis in the Constitution).

Posted by: OfConservativeMind | March 30, 2010 4:23 PM | Report abuse

OfConservativeMind: "Section 8 then goes on to enumerate very specific points for the authority of the United States. Nowhere in Article 8, or in any Amendment, does it state that the federal government, the 'United States,' have a direct duty to 'provide for the health of the citizens of the United States.' To cite a law as being good for the 'general Welfare' of the people, but with no specific backing for such law, I would personally consider it un-Constitutional..."

Such an interpretation would also probably undo Social Security, Medicare, and lots of other programs. We had this debate during the New Deal, and the Supreme Court resolved it in favor of the federal government.

The problem is the claim of "specific backing for such law," which seems to assume that constitutional language is clear and not open to interpretation. It is neither. Much if not most federal law (including, I would think, much if not most or all of the new health care law) has been asserted under Congress's Section 8 power to "regulate commerce....among the several states." What it means to "regulate commerce" isn't clear at all, so the phrase can be interpreted narrowly or broadly. Does it mean tariffs? Product safety rules? Anything that might affect the flow of goods or services across state lines, directly or indirectly?

There are good democratic reasons to interpret such clauses broadly so as not to overturn federal laws unless they clearly have no reasonable basis in Section 8. If people have a problem with federal overreach, they can elect different people to Congress to change the result. But if the Supreme Court adopts a narrow interpretation, then there is no more argument to be had and no recourse--and the Court is understandably reluctant to impose a constitutional rule where the language is vague since it is an unelected and unaccountable group.

So yes, if the Court doesn't step in, there will be no limits to federal power. But where the language is fuzzy, we can see why it might not want to impose its own "strict" interpretation and instead give the politically accountable branches the opportunity to decide the issue.

Posted by: dasimon | March 30, 2010 8:00 PM | Report abuse

OfConservativeMind:

You said it all...very eloquently.

My Great-grandfather moved to Oklahoma from Kansas and that's where my Mom was born so I keep tabs on what's happening your way. Tom Coburn rocks...hope he has Presidential aspirations.

I live in Virginia and am so proud of what Attorney General Cuccinelli has done with regard to his suit on ObamaCare.

Posted by: MaidMarion | March 30, 2010 10:34 PM | Report abuse

So Dahlia Lithwick is a Canadian...

Quick: somebody tell me why should I care what a Canadian has to say about what my state's attorney general is doing on my behalf...

Posted by: MaidMarion | March 30, 2010 10:39 PM | Report abuse

MaidMarion: "Quick: somebody tell me why should I care what a Canadian has to say about what my state's attorney general is doing on my behalf..."

Because a state attorney general can be wasting your tax dollars on lawsuits that experts on both sides of the political spectrum think are almost certain losers?

What does someone's location have to do with legal knowledge? A Marylander wouldn't be able to opine on whether the Virginia suit is legally sound or mere political posturing? If Lithwick knows the law, doesn't she has a better base on which to comment than most Virginians who probably have little sense of the Supreme Court's jurisprudence in this area? (By the way, Lithwick went to Stanford Law, one of the top US law schools, and is a regular writer on US legal issues, so she's been here for quite a while.)

Posted by: dasimon | March 30, 2010 11:45 PM | Report abuse

Dasimon:

"Because a state attorney general can be wasting your tax dollars on lawsuits that experts on both sides of the political spectrum think are almost certain losers?"

I have no idea who your proverbial "experts on both sides of the spectrum" are who think what my Attorney General has done is a "loser". It cost the State of Virginia about $350 to file the suit. For that very reasonable price I'm quite willing, as a citizen of the Commonwealth of Virginia, to wait for "the real" experts to formally comment on the merits of AG Cuccinelli's suit.

"What does someone's location have to do with legal knowledge?"

What does Dahlia's knowledge of the U.S. legal system have to do with her knowledge of the U.S. Constitution?

Posted by: MaidMarion | March 31, 2010 1:34 AM | Report abuse

@Dasimon: Well spoken, and I thank you for your response.

I must agree that if the narrowest possible view of the Constitution were to be taken, many federal agencies and laws might be ruled un-Constitutional and barred from recourse or re-enactment(assuming such would be removed or repealed). One might not agree with the legislative path our Congress is taking, or the regulatory path of an agency such as the EPA... But as you state, the recourse for such grievances relies within the democratic processes of our government.

I, personally, suppose I should pray for the improvement of our country through responsible governance and also support representatives which reinforce my Conservative view. God bless you all, and a great day to boot.

Posted by: OfConservativeMind | March 31, 2010 2:54 AM | Report abuse

Were looking at a first amendment issue when looking at those who are Exempt from the new laws. Do an internet search for "Healthcare Exemptions" and you'll see that Native Americans, the Amish, and other religious beliefs are Exempt. Each American therefore has a 1st Amendment right to entrust God with their body, something our Constitution protects and which people have embraced for thousands of years. The current media blitz is to put a government boot on your throat, however you have a legal right to not accept Obamacare. You are exempt from harassment and penalties. The statute is 18 (5) EXEMPTIONS FROM INDIVIDUAL RESPONSIBILITY REQUIREMENTS.
Learn and apply it.

Posted by: givenallthings | March 31, 2010 9:43 AM | Report abuse

"It cost the State of Virginia about $350 to file the suit."

So that's the only cost? There's no cost to having the AG and assistants spending time on the case, doing research, writing memos, having meetings...when they could all be doing other things that might actually succeed? It's not as if there aren't other important things to do. An AG has to prioritize, and spending administrative time on unsuccessful legal matters is a huge cost.

And a recent NY Times article had numerous legal experts from both sides of the political spectrum who were deeply skeptical of any challenge to the health care law. They could all be wrong, but those who think they have a case are a pretty small minority.

"What does Dahlia's knowledge of the U.S. legal system have to do with her knowledge of the U.S. Constitution?"

Well, the U.S. Constitution is a pretty important part of the U.S. legal system, isn't it? She is a regular observer of the Supreme Court and has been so for years. I'm just suggesting that it's better to judge someone on her qualifications than her place of birth. I bet she knows a lot more about constitutional law than most Virginians.

Posted by: dasimon | March 31, 2010 7:03 PM | Report abuse

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