Monday, January 11, 2010

Virginia Attorney General Issues Opinion on Health Care Legislation

At the request of Lieutenant Governor Bill Bolling, Virginia Attorney General William Mims has issued a two-page opinion on the constitutionality of the health care legislation (HR 3590) currently under consideration by the U.S. Congress.

The substantive text of his opinion letter follows (footnotes omitted):

I write in response to your recent letter concerning the “Patient Protection and Affordable Care Act,” pending in the Congress of the United States. You inquire about the constitutional validity of two provisions. One provision would, after a period of several years, exempt Nebraska in perpetuity from increased costs associated with the expansion of Medicaid. No other state, including Virginia, is afforded similar treatment. The other provision would require every citizen of the United States to obtain health insurance or face significant penalties. I share your concerns about the constitutionality of both provisions.

The Constitution creates a Federal Government of enumerated powers. See U.S. Const. Art. I, § 8. As James Madison wrote: “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.” The Federalist No. 45, pp. 292-93 (C. Rossiter ed. 1961); see also U.S. Const. amends. IX-X. This constitutionally mandated division of authority “was adopted by the Framers to ensure protection of our fundamental liberties.” Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (internal quotation marks omitted). “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the states and the federal government will reduce the risk of tyranny and abuse from either front.” Id Therefore, to justify federal legislation, a source of authority must be located in the Constitution. Equally important, legislation may not infringe on rights provided by the Constitution. With those considerations in mind, I address your specific concerns below.

I. Mandatory purchase of insurance
Among the powers accorded to Congress is the power “to regulate Commerce ... among the several States.” U.S. Const. Art. I, § 8, cl. 3. Following the enactment of President Roosevelt’s New Deal program, the Supreme Court of the United States “ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause.” United States v. Lopez, 514 U S 549, 556 (1995) The Court has concluded that Congress’ authority s not limited to “the regulation of commerce among the states,” Ed. at 555, but further allows Congress to regulate activities that “affect interstate commerce.” Id. The Commerce Clause power is broad, but it is not without limits. In Lopez, 514 U.S. 549, the Supreme Court struck down as unconstitutional the Gun-Free School Zones Act of 1990. See also United States v. Morrison, 529 U.S. 598 (2000) (invalidating Violence Against Women Act of 1994). Although health care is an economic activity, the failure to purchase health insurance is not an economic activity. The insurance mandate is open to constitutional challenge — although it is not clear that such a challenge would succeed, given the breadth of the Supreme Court’s interpretation of the Commerce power.

II. The “Nebraska exception”
You inquire whether the Equal Protection Clause of the Fourteenth Amendment would provide a basis for challenging the Nebraska Exception. The Equal Protection Clause, by its plain terms, applies only to the states, not to the United States. U.S. Const. amend. X1V § 14. Therefore, a state could not bring a viable equal protection challenge to the Nebraska exception currently found in the pending legislation.

The Nebraska exception is vulnerable, however, on other constitutional grounds. The Constitution provides Congress with the power to collect taxes and to spend money for the “general Welfare of the United States.” U.S. Const. Art. I § 8, cl. 1. Once again, the Supreme Court has given Congress very broad latitude in the exercise of this power. See South Dakota v. Dole, 483 U.S. 203 (1987). Nevertheless, that latitude “is of course not unlimited.” Id. at 207. One of those limits is that Congress must, as the Constitutional text unambiguously commands, spend in pursuit of the “general welfare.” Id. In my view, carving out an exception for a specific state, unrelated to any policy objective other than to secure the vote of a particular senator, would exceed the bounds of what Congress may do under the Spending Clause. Where the taxing and spending is intended to effectuate a benefit for a single state, solely to gamer the vote of a particular senator from that state rather than for the general welfare, the spending at issue is unconstitutional. To conclude otherwise, would mean that the General Welfare Clause is meaningless.

This will not be the final word on this subject.  I expect other states will also be weighing in on the constitutionality of Obamacare.

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