Essay: Sore Losers - 3.25.10

There are a number of efforts underway to allow Michigan residents to opt out of the new federal health care law. Michigan Radio’s Political Analyst Jack Lessenberry wants to know if that is constitutionally possible…

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I’ve spent a lifetime covering politics and politicians, so very few things surprise me any more. But I have to say I was stunned when just hours after health care reform passed, people started talking about having Michigan “opt out” of the federal law.

An apparently ad hoc group called Michigan Citizens for Health Care Freedom wants to put something on the November ballot asking voters if they want to opt out of the federal health care plan. Meanwhile, Attorney General Mike Cox said he would join other state officials in challenging the constitutionality of the law Congress passed extending health care benefits.

This left me scratching my head, because all my life I had been taught that all this was impossible. There’s a little thing called the Supremacy Clause in the U.S. Constitution that says, in completely unambiguous language, that “all laws of the United States which shall be made … shall be the supreme law of the land … the laws of any state to the contrary notwithstanding.“

The Fourteenth Amendment to the Constitution pretty much repeats that, saying that “no state shall make or enforce any law,“ that will abridge the privileges or immunities of citizens of the United States.“ There was also a little something called the Civil War, which was all about whether states could defy the central government.

Six hundred thousand people died to settle this issue, and the answer was that states most certainly cannot. So how can folks be saying they are going to opt out of a federal law?

However, I also am aware of something else: I am not a lawyer, nor a Constitutional scholar. But I know someone who is. I called Robert Sedler, who has the special rank of Distinguished Professor of Constitutional Law at Wayne State University.

Sedler has written widely on constitutional matters and successfully argued cases before the U.S. Supreme Court. What’s going on here? I asked. He laughed. “Political posturing,” he said.

Posturing, or general ignorance. “Any first year law student knows that states cannot defy the federal government. If they pass something, it will be thrown out by the federal courts.”

Now, it didn’t surprise me to learn that Michigan Citizens for Health Care Freedom is based on a wrong-headed idea. It is a Tea Party effort being led by a state legislator with no legal background.

But what about Attorney General Cox’s lawsuit alleging that the Federal Government doesn‘t have the authority to make people buy health insurance or fine them for not doing so?

That’s just as invalid, Sedler told me. “Political grandstanding. He’s running for governor.“ He directed me to a 1923 case, Massachusetts vs. Mellon, in which a then very conservative Supreme Court said it couldn’t just review and cancel acts of Congress on the ground they are unconstitutional.

These efforts are going nowhere, he said. But if you still think Michigan should be allowed to opt out of the federal law, ask yourself these three questions: Should the states that voted for John Kerry in 2004 been allowed to stop sending tax dollars for the Iraq War?

Should Ann Arbor be allowed to opt out of the Michigan constitution’s prohibition against gay marriages?

And finally, whatever happened to the idea of gracefully conceding defeat when you’ve lost, fair and square?

Comments

[PeterPaul]

Kudos for making a clear point! Attorneys General of many states appear to be grandstanding, just ahead of upcoming elections. Is it fair for our tax dollars to be wasted on these clearly lost causes?

[delNorte]

I hope that the cost of this lawsuit is going to be billed to Mike Cox's campaign fund.

[Anonymous]

I have two comments, in two parts. The first is in regard to Professor Robert Sedler's remarks.

What a nauseating bit of arrogance it is for Mr. Sedler to pout about how Attorney General Cox is just "running for governor."
Robert Sedler might not be running for anything, but he's sure helping a lot of other people run -- all Democrats:

http://www.campaignmoney.com/political/contributions/robert-sedler.asp?cycle=08

Rather than sneer at all of the people who they think are too dumb to properly understand the U.S. Constitution, it might have been nice if Mr. Lessenberry and Mr. Sedler had taken the time to seriously address the considered arguments that a national mandate for the purchase of health insurance might not be one of the powers enumerated to Congress in Article I of the Constitution. Arguments like those advanced by former Justice Department lawyers David Rivkin and Lee Casey in a Washington Post Op-Ed:

http://www.washingtonpost.com/wp-dyn/content/article/2009/08/21/AR2009082103033.html

Now, granted; I don't expect that Prof. Sedler will agree with his political opponenents' arguments. But I would expect better reporting from Jack Lessenberry, and I'd expect that a serious and honest legal scholar would not laugh and say, in essence, that, 'Oh the other side is just crazy.'

Because if Prof. Sedler really wants "crazy," he might want to start with our own Congressman John Conyers, who, last I checked, was sitting in his home-district Congressional office that is lodged within the Levin Federal Courhouse Building in downtown Detroit. Conyers was sitting in that office while, downstairs in the courtroom of Judge Avern Cohn, his wife was being sentenced to a term of years in a federal penitentiary. That same Rep. Conyers, when asked what part of the Constitution empowered the Congress to pass an individual mandate, said, "the good and welfare clause, and a couple of others." Yeeeipes. Anybody know where to find a "good and welfare clause" in the Constitution? Maybe Prof. Sedler knows.

And oh by the way; John Conyers, the "good and welfare" legal scholar who just now happens to be the Chairman of the House Judiciary Committee should be well-known to Prof. Sedler. After all, Sedler has made donations to Conyers campaigns in several election cycles. (See link above.)

[Anonymous]

My second comment is in regard to Jack Lessenberry's own characterizations of Constitutional law.

Jack; you seem to think that any Constitutional inquiry ends with the Supremacy Clause. And it is true; within its enumerated powers under Article I, Section 8, laws enacted by Congress are "supreme." But of course Congress' powers are very much limited to begin with, inasmuch as all other unenumerated powers are reserved to the states. So Congress has the power to tax, and the power to regulate interstate commerce. (And to raise and support armies, establish post offices and roads, coin money, etc.) All other powers are reserved to the states.

So Jack Lessenberry ought to quit sneering about the Supremacy Clause, and start thinking about the Commerce Clause. Or the taxing power. Rest assured, that many millions of Americans will be thinking about the health care bill in terms of the taxing power as well, to the extent that Obacare will be relying on the IRS as the enforcement agency for a national healthcare mandate. That ought to be fun for Democrats to defend in November.

And again, with respect to the Commerce Clause, the argument isn't nearly so clear as Lessenberry and Sedler might like us to-dumb-to-understand-Republicans to think. Here is a Heritage Foundation memo, published in the Wall Street Journal last December:

http://online.wsj.com/article/SB10001424052748704254604574614123304945580.html

Now, after considering all of this, does any fair-minded person still think that any of this is as simple as indicated by the bogus, phony questions posed by Jack Lessenberry? Or the simplistic sneering of our own dear Prof. Sedler?

[Jeff]

FYI - the audio link for this is broken.

[Jon]

Here is what leaves me scratching my head...why can Native Americans Opt out of the Health Care plan but the rest of us can't? ...and it's all constitutional...When are we all going to be treated equally? Where do I go for my "special deal"?

[Jeff]

Here's the correct audio link:
http://pod.michiganradio.org/ram/jackessay20100325.m3u

[Nathan F, Lansing]

I didn't see any more being donated for the 2010 elections from your first link

[Anonymous]

Pretty early for 2010 elections, don't you think, Nathan?
And besides, campaign finance reports usually filter in, and go through routine reporting channels, for the better part of a year after elections.

That is why Republican ideas on campaign finance reform make so much sense. Get rid of meaningless, unconstitutional limits; mandate simple, immediate, total disclosure of sources instead. Maybe that way we can avoid the plethora of meaningless 524's all with similar names like "Free-Thinking Americans for Good Choices." Anybody know whose side that group might be on? (I just made it up.)
Right now, on MSNBC (charming), Detroit-area Comcast subscribers are likely to see ads congratulating the vulnerable Michigan Congressman Gary Peters (D) for his progressive health care reform vote in support of Obamacare. The fine print is almost unreadable. The ads were produced and paid for by AFSCME and some other unions.

Just thought you might want to know that.

[Anonymous]

Sorry -- I just re-read and see that I called them "524" groups. They are 527 groups...

[Bob Martel]

I'd be OK with people opting out of health care insurance so long as the ERs, hospitals and physicians could deny care to them. Let them die by the side of the road.

[Nathan F, Lansing]

Well I was watching CBS for some March madness and all I saw was multiple adds from citizen united and all bashing Mark Schauer. I even post I am from Lansing but I guess you missed it. I saw only one add in favor of him and over a dozen degrading him so keep talking like it is all union, when it is really not in my area. I also did not want to bring it up but why not. $500 is mass cash for a campaign contribution. Heck I even spent $200 on a rep from Florida, yet I live in Michigan. Besides, at least I post a name for you to respond too. I would see how much you donate but anonymous is not in the records. If you want I'll post my last name but I feel I already disclosed my contribution, I think I gave you enough info to guess it.