14 Attorneys General vs. the Constitution

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Stanley Kutler is the editor of The Encyclopedia of the Vietnam War (Scribner's, 1995) and the The Wars of Watergate (Alfred A. Knopf). He is the E. Gordon Fox Emeritus Professor of American Institutions at the University of Wisconsin, and also professor of law. This article originally appeared at the Huffington Post.

Fourteen state Attorneys General have indicated their determination to challenge the recently-enacted health care legislation on the grounds that their states have pre-empted federal action.  Why is it no surprise that all these officials are Republicans?

Constitutional law, as understood and implemented for more than two centuries, trumps the AGs' contentions.  Article VI, Section 2 provides that "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, . . . shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." [Emphasis added]

The "supremacy clause" is a clear command.  It emphasizes the paramount authority of the Constitution, national laws, and treaties over state laws; for good reason, it has been called the linchpin of our constitutional system.  The clause has been the basis for national preemption of authority over the states in a variety of matters, including laws passed under the regulation of commerce or the general welfare clauses.  The provision for judicial enforcement buttressed arguments in behalf of the judiciary's special role in interpreting the Constitution.  No court with final authority has failed to recognize the imperatives of the clause.  It is unlikely the politically-motivated state officials - and their political allies in and out of government - will reverse that path of American constitutionalism.

The AGs certainly must remember their oaths of office.  All officials, federal and state alike, must fulfill the constitutional requirement (Article VI, Section 3, following the supremacy clause) to take an oath to support the Constitution.  Our obstructionist Attorneys General, too, are obligated to pledge allegiance to national supremacy.

Utah's AG, one of the leaders in proposing the suit, seemed to be whistling in the dark; still, he held out some hope for success when he spoke of "this" U.S. Supreme Court -- which is barely-disguised code language for the hope that Justice Anthony Kennedy will support their position.  (It would be interesting to watch Justice Antonin Scalia work around his always-certain knowledge of "original intention.")  At bottom, the Utah official forcefully asserted that the federal government cannot require people to buy insurance.  Oh?  Surely he knows how to spell "Medicare."

After the Republican Party pledged to repeal the Social Security Act in the 1936 election -- and carried only 2 states -- opponents went to the Supreme Court the next year.  But the Court, in a 5-4 decision, upheld the taxing provisions of the law ("Congress . . . may lay and collect taxes . . . to . . . provide for the . . . general welfare."  U.S. Constitution, Art I, Sec.8.)  The Court summarily dismissed arguments that the law encroached on state powers and sovereignty.

The constitutional history of national authority is clear:  states may not nullify or overturn a federal statute.

In 1798, the Sedition Act aroused intense political strife.  Thomas Jefferson, then the Vice President of the United States, and his longtime political ally, James Madison, covertly led the debate, and they wrote the Kentucky and Virginia Resolutions opposing the Act.  The Act generated very real fears of government prosecution, and political protest could be readily punished by national authorities.  But the federal courts had refused to consider the law's constitutionality, in effect a victory for those who defended the act.

The Kentucky and Virginia legislatures expressed a "warm attachment" to the Union and to the national government's "legitimate powers."  But they insisted that the Union had been forged as the agent of sovereign states, which were obligated to challenge congressional laws when they exceeded or contravened the "authorized grants enumerated" in the Constitution.

Jefferson believed the Sedition Act unconstitutional because the First Amendment prohibited national regulation of speech; only the states could regulate speech, religion, and the press, he said.  (Yes, he meant that states could circumscribe freedom of speech and press.)  The protests called for the state legislatures, in their sovereign capacities, to check national abuses through "interposition" and declare the law unconstitutional.  The Kentucky and Virginia Resolutions concluded with a call to other states to follow their lead.

Other states did not, and the doctrine of interposition faded for several decades as national power and authority substantially increased - ironically under Presidents Jefferson and Madison.  But the growing development of sectionalism, especially with the massed political power of the pro-slavery states, revived the idea as a means for insuring the protection of one section's "peculiar institution."  John C. Calhoun, like Jefferson, a onetime Vice President and then Senator (D-SC), appropriately characterized as the "Marx of the Master Class," resurrected Jefferson and Madison's basic ideas, and turned them to their logical conclusion of full-blown state sovereignty theory, loaded with the doctrines of nullification, and ultimately, secession.

The history of state resistance is a minor stream of the past; states never have successfully mounted a challenge to federal supremacy.  The attempts to do so occurred before 1860, at a time when a variety of centrifugal forces - political, economic, and social - threatened the integrity of the Union.  But the force of arms in the Civil War assured the triumph of American nationalism, cementing the bonds of nationhood.  The dubious doctrines of nullification disappeared into the ashcan of history.  Calhoun, however, occasionally is resurrected, and now appears in the Republican guise of Sen. Jim DeMint (R-SC), who has reached into the ashcan to resurrect state interposition against the new health care law.

John Marshall, our first great Chief Justice, and a man intimately related to the ratification of the Constitution, methodically dissected and rejected notions of state sovereignty and interposition in an 1821 opinion.  Marshall realized the stakes if such doctrines prevailed.  With words today's state attorneys general might ponder, Marshall said that "America has chosen to be, in many respects, and to many purposes, a nation . . . . The people have declared that in the exercise of all powers given for these objects, it is supreme."  He concluded by citing the "supremacy clause:  "These States are constituent parts of the United States.  They are members of one great empire - for some purposes sovereign, for some purposes subordinate."

Marshall in his time preserved the "mystic chords of memory" that bound the nation, as Lincoln said.  We have the obligation to preserve them - unless as Marshall conceded, we choose to exercise our inalienable right of revolution and overturn the Constitution.

Pity that our state Attorneys General have chosen to turn a blind side to the history of the Constitution and federal supremacy.  They belong to that long ago abandoned path of politically-motivated attempts to defy national laws and the Constitution.  Their action is embarrassing; they offer only political theater to an angry crowd, easily led and filled by such demagoguery; worse, it undermines the very Constitution they have sworn to uphold.

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Grant W Jones - 4/12/2010

Ah yes, "let's force doctors to treat everyone as a duty, regardless of the doctors' wishes, desires or interests."

Arnold, what are you counting on when laying on an operating table under that doctor's knife?

Arnold Shcherban - 4/11/2010

The "medical profession", as any other profession (and, more than any other profession, since the matter in its hands is a health and life of citizenry - the most important issue for human being) must be and already is controlled in all civilized world and in this country, as well (licensing, insurance companies regulations, etc.)
In this country, however, that control is dangerously lax, comparing to the other civilized countries.
The new health care bill, unfortunately, does not go as far as addressing one of the main frivolities enjoyed by the US medical doctors: the right to refuse to serve a patient, unless the latter is covered with the insurance plan accepted by the doctor or pays cash. Considerations of humanity and democracy (which are real substance of medical profession) should compel the US "medical profession" to accept any insurance plan without any exclusion. However, those doctors who are driven not by those
considerations, but by considerations
of greater profits (greed) have to be reminded about their professional Hippocrates oath by societal means of enforcement, i.e, governmental regulations. Simple like this, sir.
An opinion that puts interests of SOME (since most of them agree with mine, in principle) in medical profession above the core interests of a whole nation, is not even worth a discussion.

Grant W Jones - 4/10/2010

Sorry for the typos. I tried to post a couple of times without success. The rewrites weren't proofread.

Grant W Jones - 4/10/2010

"You can do better." I stand corrected.

Liberty now equals unlimited government. Epic fail.

Excellent example of formal equivocation with your attempt to define liberty as socialism. The issue at hand is on the meaning of liberty. You can't define it out of existance.

Instead of abusing the language in Orwellian fashion, how about just admitting that Progressive oppose liberty has it has been understood for the last 250 years? It would be more honest than your freedom (liberty) = slavery (socialism) Newspeak.

Jonathan Dresner - 4/9/2010

Liberty? no. Limited government? Very 19th century. Inability to tell the difference? Classic libertarian.

As far as your "millions of Americans" go, I'm reminded of a classic gaffe made by someone who was advocating a kind of global democracy. "If a billion people say 'yes' who could say no?" he wrote in all earnestness. The obvious answer, of course, was "two billion people."

You may be right, that millions of Americans believe as you do. Tens of millions, though are what's required to win at the national ballot.

Grant W Jones - 4/9/2010

I'll take you at your word that Democrats and Progressives believe liberty and limited government to be "anachronistic." Which is just a way to dodge the debate by declaring victory. You can do better.

Millions of Americans think otherwise, as you are going to discover this November.

Jonathan Dresner - 4/8/2010

Your question is anachronistic, Mr. Jones: nobody's answering it because it's a century too late for the answer to be meaningful.

I'm neither a lawyer nor an American historian, but even I can answer that. Multiple ways.

The Constitution grants Congress the power to regulate commerce between the States. The medical and insurance professions are trades regulated by the states, but regulated differently; in order to create a consistent national market for both industries -- a priority you should appreciate -- Congress had to act.

The Constitution is also a tool for the protection of rights, and health care has evolved into a right. The US used to be at the forefront of human civilization; now it can begin to reclaim that position.

Grant W Jones - 4/8/2010

I guess I shouldn't expect an answer to my question anytime soon.

Where does the Constitution delegate "healthcare" as a federal responibility, including the power to control the entire medical profession?

Grant W Jones - 4/6/2010

Motives don't alter facts. Your commentator stated that no Democratic AGs were filing suit.

"As Attorney General, I am duty bound by my oath of office to pursue a request by the Governor of the state of Louisiana for legal assistance, so long as it has substantial legal merit.

To save Louisiana the potential expense of filing a separate suit regarding the health-care legislation, it was my decision to sign-on to Florida's well-drafted action at minimal cost to Louisiana and accomplish the same legal purpose."

"As Attorney General I will not engage in political opportunism or partisan politics nor file any claim that does not have substantial legal merit."


What part of "SUBSTANTIAL LEGAL MERIT" do you find confusing?

The headline of the article by the fringe group you link to is: "Did Jindal Bribe Louisiana’s Attorney General To Force Him To Join Frivolous Health Care Lawsuit?" Note the word "bribe," not blackmail. Of course, even that accusation is based on some "unnamed source." Real convincing.

But then again, Democrats have always responded well to bribes and kickbacks. Although in this case, such may be the only thing that can compel a Dem to do the right thing.

Good thing nobody was bribed into supporting socialized medicine.

Jonathan Dresner - 4/6/2010

The Louisiana AG signed on to the suit because he was blackmailed by Louisiana's Republican Governor, not because he believes it has any legal or political merit.

Grant W Jones - 4/6/2010

John "Buddy" Caldwell, AG for Louisiana, is one of the fourteen suing over the unconstitutional nature of socialized medicine.

John Caldwell is a Democrat.


John Marshall also wrote: "A law repugnant to the Constitution is void."

The Constitution also 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."

Where does the Constitution delegate "healthcare" as a federal responibility, including the power to control the entire medical profession? Or is the entire concept of limited government too old-fashion to even merit acknowledgment from our new Progressive overlords?

Lawrence Brooks Hughes - 4/5/2010

Your comments above with details such as not required by people who are not required to file tax returns, or by people with incomes below the poverty level, or by people for whom the premium would be more than 8% of income (not sure I got that right), all demonstrate what a ghastly nightmare this law will (or, if repealed, would) be to administer.

In addition, that fine cadre known as the IRS cannot enforce compliance on something like 20% of the population for income taxes--certainly 20% in the age group of 20-somethings), so how in the world will they get $800 out of millions of these kids? The victims will simply jump from one gated apartment complex to another, one step ahead of the gendarmes.

Lawrence Brooks Hughes - 4/5/2010

Richard Williams - 4/5/2010

"Why is it no surprise that all these officials are Republicans?"

Actually, the question should be: "Why is it no surprise that no Democrats have joined them?"

I'll answer. Because, evidently, they have bought into the socialist agenda of the current regime.

Andrew D. Todd - 4/5/2010

My understanding is that the mandate is structured in such a way as to minimize constitutional problems. For example, it excludes people who are not required to file tax returns, and is not payable by people below the poverty line, or by people who cannot get insurance for no more than eight percent of their income. Technically, it is not a mandate, but merely a different means of calculating income tax. The penalty is, in any case, about eight hundred dollars per person, up to a maximum of three people in a family, or two percent of income, whichever is greater. In most instances, the two percent would be at least a sizable proportion of the fixed sum. If the fixed sum were struck down, that would have minimal impact, and the remainder would become a straightforward tax deduction. Tax deductions are already given for thing like mortgages from private lenders.

Even if we assume that the mandate as a whole gets thrown out, that would merely put the insurance companies into difficulties. They would have to do something to fix their difficulties. If the Medicare age were lowered a bit, that would remove a lot of potentially expensive customers from the insurance companies' rolls, and would serve the same purpose as a mandate. There are probably at least three or four Republican senators who are, um, persuadable by the insurance companies. The way the fix works is that a corporation employs a senator's son. Nothing too blatant, you understand. The Democrats, of course, support such a measure on principle, as a step towards "single payer." The mandate is not something essential to ObamaCare, but simply the result of a near-chance bargain which fell through.

Medicare is designed with a "Gap." The rules create a "risk" of a rare event, with a maximum loss ceiling, which does not require a lot of claims supervision, in short, something pretty much like the kind of risk covered by homeowners insurance. An insurance company offering "Medigap Insurance" simply pays its share of those expenses the Medicare people approve. The Gap was a shrewd bribe to the insurance industry to let Medicare go through. So, if you lower the Medicare age, there is more scope for insurance companies to sell Medigap insurance.

Ellis ---- Sandoz - 4/5/2010

Prof. Kutler misses the point. Valid legislation must be pursuant to not in derogation of the Constitution. Talk to a lawyer, Stan.

Arnold A Offner - 4/5/2010

Stanly Kutler is absolutely right about federal supremacy. But does anyone think that will matter to Scalia, Roberts, Alito, and Thomas if a case gets to the Supreme Court regarding national helath insurance? The Social Security case was 5-4; this time only Justice Kennedy would stand between sustaining the law and trying to wreck the Democratic program.

Arnold Offner
C.F. Hugel Professor of History
Lafayette College

John Connally - 4/5/2010

I thought at first that this bill would not differ that much from Medicare. However, Congress uses its taxing power to fund Medicare. It has never used its commerce power to force individuals into a transaction with a private company. As one journalist pointed out, "Regulating the auto industry is one thing; making everyone buy a Chevy is quite another."

Caroline Hill - 4/5/2010

think Medicare, as Kutler says.
Much of Medicare is offered through private companies.

John Connally - 4/4/2010

There is no doubt that partisanship motivated these Attorneys General to challenge the new health care bill, but they do have some ground to stand on. Isn't this the first time Congress has passed something that forces citizens to enter into a contract with a private company? Is that Constitutional?

Forcing you to purchase auto insurance when you choose to drive a car is one thing (the possibility of inflicting harm on others), but making you buy health insurance merely because you are alive should worry many people. It establishes a dangerous precedent. What else will Uncle Sam force you to purchase?