Buck up Buddy treading water again – this time on Federal Health Care Legislation

Good ole Buck up Buddy, it’s time to sink or swim – who let Foti’s insurance antitrust suit slip away is back on the wrong side again.

No need to guess the lone Attorney General with a D (for dense Democrat) by his name who put Louisiana among the 13 states filing suit against the federal government, “claiming the landmark health care overhaul is unconstitutional just seven minutes after President Barack Obama signed it into law”.  The Clarion Ledger has the story in  States sue over health care law.

The lawsuit was filed in Pensacola after the Democratic president signed the bill the House passed Sunday night.

“The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage,” the lawsuit says.

Legal experts say it has little chance of succeeding because, under the Constitution, federal laws trump state laws.(emphasis added)

Will Bardwell, [email protected],  explains why the suit has “little chance of succeeding” in his post, The Interstate Commerce Clause and Barbour’s Constitutional Conundrum

Whether the newly enacted health care reform package amounts to good policy is a question on which reasonable people can disagree. What is beyond even the most abstract, academic argument is the fact that the legislation is a permissible use of Congress’ constitutional authority.

Nevertheless, more than a dozen state attorneys general — almost all of them Republicans — have lined up to challenge the bill’s constitutionality in federal court. If Haley Barbour gets his way, then Jim Hood soon will join them, armed with the argument that Congress has overstepped its constitutional bounds.
In a legal realm where arguments often are inherently amorphous, this is an absurd dispute.
Tom Freeland has already noted the objectors’ unsettling reliance on the Tenth Amendment, and his point needs no supplementation except perhaps for this: the Tenth Amendment is, standing on its own, essentially meaningless. It’s a redundant provision that rightly has been all but read out of the Constitution. As the Supreme Court explained nearly 70 years ago, “[t]he amendment states but a truism that all is retained which has not been surrendered.” United States v. Darby, 312 U.S. 100 (1941). It’s a baseless argument, and the governor — a licensed attorney — knows it.
An objection raised through the Interstate Commerce Clause is more interesting but ultimately no more effective. In a seminal Rehnquist Court case, United States v. Lopez, the conservative bloc of justices held that “persons or things in interstate commerce” are subject to regulation by Congress. Id. at 558. Clearly, insurance companies and the policies they sell are things in interstate commerce, and if there’s a solid argument that the health care reform package doesn’t amount to a regulation thereof, then I haven’t heard it yet.
For Mississippi’s officials — especially those that have made their careers by railing against what they call “junk lawsuits” — to waste the judiciary’s time with such paper-thin arguments is, at best, unbecoming. But to do it in the middle of a budget crisis unmatched in recent history is nothing short of irresponsible. If the governor wants to waste his time flying a flag in an effort destined to fail, then that’s fine. But he ought to do it on his own dime.
Meanwhile, the Clarion Ledger story noted, “Florida Attorney General Bill McCollum is taking the lead…”  The story also notes McCollum is running for Governor.
I’ll add to this post later but welcome reader comments while I get back to work.

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