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The ink may not have dried after President Barack Obama signed the Patient Protection and Affordable Care Act last week when our own John Suthers joined about a dozen other state attorneys general in filing a constitutional challenge.
Much of the argument is financial, in that the states could be required to spend more on Medicaid. As "sovereign" entities, the states ought to determine their own levels of taxing and spending.
That's a fair argument, but it's a little late, since Medicaid has been around for 45 years. Further, state participation in Medicaid is voluntary, although all states participate -- Arizona was the last to join, in 1982.
Since a state can presumably drop out of Medicaid, then there's no legal "requirement" for additional spending. So this argument likely won't go anywhere.
Another contention of Suthers and his colleagues is that the new law exceeds the authority of the federal government.
The federal constitution gives Congress the power 'To regulate Commerce ... among the several States," interstate commerce. There's a provision on the bill that requires individuals to get health insurance, or be fined (in the form of higher income taxes).
In general, commerce has been defined as "economic activity," but here we're talking about economic inactivity (failure to purchase something from a private company), and how can inactivity be a form of interstate commerce subject to federal authority?
Good question, but note that on June 6, 2005, the U.S. Supreme Court held that homegrown marijuana, even though legal under state law and a substance that might never get within a hundred miles of a state line, can still be forbidden by federal law under the Commerce Clause.
If Suthers. who took office on Jan. 4, 2005, objected to the decision in Gonzales v. Raich, I can find no record of it. Indeed, he keeps reminding us that marijuana is illegal under federal law (the Obama administration has curtailed enforcement in states like Colorado where medical marijuana is legal).
So it seems a bit late for Suthers to be complaining about federal stretching of the Commerce Clause. If it is wrong in 2010, it was wrong in 2005, and our attorney general owes us an explanation of his conversion from federal enforcement cheerleader to states' rights activist.
Lately I've heard the argument that "the government can require you to buy car insurance, so why can't it require you to buy health insurance?"
That's not a good analogy, since it's the state government, not the federal government, which does the requiring, and they have different powers. Further, you're not required to buy car insurance if you don't drive, and you're not required to drive.
In theory, anyway. In practice, given the state of American public transportation and the inattention given to pedestrians and bicycles, you pretty much have to drive if you're going to work somewhere or buy groceries. So if required insurance purchases bother Suthers so much, why isn't he filing suit against every real-estate development that necessitates driving to reach jobs, schools, stores or churches?
One more question comes to mind. Our state government is stretched thin. And since other states are suing, won't their litigation determine the principles are involved here? So why should Colorado spend anything, even if it somehow amounts to no more than some staff time?
The suit does say that Suthers is doing this to protect our "freedom, health, and welfare." But do you really feel protected on that account?
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