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Wednesday, March 24, 2010

Fun with Marty: SD AG Jackley Joins Doomed Health Care Lawsuit

Our global warming resolution was embarrassing enough. Now South Dakota Attorney General is trying to get South Dakota on Rachel Maddow again, signing our good name, along with twelve other state AGs, to a really weak lawsuit against Uncle Sam to block health care reform.

I eagerly downloaded the document (eagerly hyperlinked by our state website [sorry! link since removed by state!]), hoping to find some profound legal arguments. Instead, I found pretty thin gruel, a bad mix of shaky Constitutional references and policy arguments more suited to the well of Congress or the campaign trail than a court of law. Here are some tidbits a judge will be throwing out shortly:

Paragraph 2: "The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage." Nor does the Constitution authorize construction of a federal spaceport in Florida, but I haven't heard Florida AG Bill McCollum, lead plaintiff on this suit, ask the courts to nullify NASA.

Also not authorized by the Constitution: minimum wage legislation, development of the Internet, or federal definitions of marriage.

Paragraph 4 questions the federal government's power to establish eligibility guidelines and operating rules for Medicaid. The suit calls health care reform "an unprecedented encroachment on the sovereignty of the states." But it is precedented: welfare reform in 1996 imposed lots of new restrictions on how states administered social assistance programs. Republicans didn't see anything unconstitutional about that. Federal program, federal rules.

Paragraph 4 also undercuts the policy argument AG Jackley made on SDPB Dakota Midday Tuesday that the states can solve health care needs better. The lawsuit says state budgets are in dire straits and they can't afford to withdraw from Medicaid. The lawsuit states Medicaid has become "customary and necessary."

States can solve better, but only the federal government can solve. Which is it, Mr. Jackley?

Of course, whichever it is doesn't matter: Mr. Jackley's moaning about tight state budgets and (later) unfunded mandates is purely a policy argument that has no weight in the courtroom. Health care reform may be an ill-conceived, expensive, ineffective law (compared to Canadian single-payer, it definitely is!). But the judge won't care. Jackley needs to show the law is unconstitutional. The Constitution does not forbid expensive or ineffective laws. Unless we get an activist judge (and we wouldn't want that), Paragraph 4 wastes the court's time.

Paragraphs 6, 7, and 8 gripe about unfunded mandates. Nowhere does the lawsuit cite the case law that finds unfunded mandates unconstitutional. (Hit those law journals, kids!) If AG Jackley does find such case law, though, the court will have to nuke another unfunded mandate: elections. (Darn: midterm elections are unconstitutional: Dems hold Congress while courts figure that out.)

Paragraphs 32 through 37 make an argument akin to breach of contract, saying the plaintiffs agreed to participate in Medicaid under certain conditions and that Uncle Sam is now changing the conditions. There could be a little legal ground there... but the AGs make themselves look like dupes. All but one of the AGs are Republicans, and Republicans always tell us to beware the federal government. Yet these paragraphs tell us the plaintiffs never expected that the federal government might try to expand Medicaid or federal power therethrough. Good grief.

If Marty Jackley wanted to legislate, he should have run for Congress. Our AG should respect the Constitution enough to avoid wasting our time and the court's with his policy preferences.


  1. Can anyone tell me where this quote comes from?

    "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."

    Anyone? Anyone?

  2. Oh my, let me think, could it just possibly be the 10th amendment to the Constitution? The very Constitution that Obama stated in his first debate should not be taken literally and should change with the times. Change, that little word that Obama used so well. Now that people are realizing the truth behind Obama's words and his true agenda and how it is affecting them, I wonder how many would have voted differently. Cory, I know you firmly believe in the guy yet, but that is not the consensus among many of his former supporters. And the change we have seen so far is just the tip of the iceberg.

  3. Cori,
    Just food for thought. If the Federal Government can tell you that you must buy private health insurance, do they have the power to tell you that,in the interests on national security, you must buy a Hummer to prevent the sale of the brand to China.

    I personnaly believe that if this part of the bill becomes law then we will have started down a very slippery slope.

    Single payer, with the Federal government providing the insurance is, in my opinion, constitutional,but not the requirement that you perchase private insurance.

    People need to start understanding the difference between, rights and privileges and earned and unearned entitlements.
    Joseph G Thompson

    PS off the subject, been reading about Shariah law, think you should take a look.

  4. Joseph-

    If the insurance was provided by the federal government and paid for by taxes, would it then be legal and not a concern?

    Honestly, leaving the private insurance companies in the loop is essentially a compromise for the free market crowd that likes to scream commie, except for when the fire department shows up to keep their house from burning down. So really there were three choices presented:

    1. Do nothing.
    2. Leave private insurers in the loop, but require everyone to get insurance.
    3. Provide universal health care.

    The majority agree number 1 is unacceptable, but there was debate about whether 2 or 3 would be preferred.

    The minority, wanted number one, but compromised for number 2 which they are saying is illegal. If that was truly the case, they should have just been saying number 1 or 3 from the beginning.

  5. Tony, until a constitutional amendment is successfully ratified IAW Artice V of the U.S. Constitution, there is no authority whatsoever for a federal health care system or wealth redistribution system.

    It isn't in Article 1 Section 8 which outlines the few and defined power granted to the federal government, and the Tenth Amendment specifically states that actions not delegated to the federal government by the Constitution are reserved for the states and the people.

    The action taken by the majority to push this socialist bill on the American people was in direct violation of their oath to the Constitution, and was an illegal act.

  6. Tony,
    Yup that's what I'm saying. If the Federal Government mandates it then they take the payment and provide it.

    That provides the basis for Social Security and Medicare. Congress used to be concerned about the Constitutionality of their actions,but starting in the 1960's the concern started to slip away.

    Doesn't apply just to health care.

    Before I make my next statement,let
    me just say the U.S. military was my career, I served twice in Viet Nam, no one who knows me,be they Federalist or Anti-Federalist, would ever question my patriotism, I am a hyper patriot.

    The best example of ignoring the Constitution is in the wars we have fought since and including Viet Nam. Only Congress can declare war, but to cover their own behinds Congress has permitted every President since Eisenhower, to committ American forces to combat in overseas areas without a declaration of war.

    Your number three and number one are the only, in my opinion, constitutionaly acceptable solutions to providing health insurance.

    By the way, it is the only part of the bill the President signed that I have any heartburn with.

    President Reagan is one of my great heros' and I don't believe he would have many problems with this bill.

    Nonnie and Bob,
    The Constitution of the United States was written to be a "living document", to be able to be changed and interpretted as the nation grew to adulthood.

    Like it or not the constitutionality of a Federal single payer system is allowed in the Preamble(the reason it was established) to the Constitution. I am sorry but I am going to cite the entire preamble, "We, the people of the United States, in order to form a more union,establish justice,insure domestic tranquility,provide for the common defence,promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and estabilish this Constitution for the United States of America."

    "Promote the general welfare", Social Security, Medicare, Pell Grants,subsidised student loans,farm subsidises, the list goes on and on of laws that while not specifically allowed by the Constitution are permitted on the grounds of "Promote the general welfare".

    I am a xenophobic American and proud of it.

    Joseph G Thompson

  7. If Bob would stop screaming his same stale talking point, he would notice he still hasn't addressed any of the examples given in the post. There is no case law supporting Jackley's position. His only hope is an activist judge who throws out not just health care reform but the 1996 welfare reform, elections, NASA, and who knows what else.

    And Joe, I'm actually with you to soe degree. I'm not fond of the insurance mandate. Tony's right: it's a compromise (cop-out in my book) to keep private insurers in business. I feel the same about this reform as I do about our car insurance mandate: if the government is going to mandate it, it might as well offer it directly. At the point of a mandate, there is no free market, and we might as well socialize completely and do it better.

  8. When the U.S. Constitution clearly prohibits something (as it does government health care systems and other wealth redistribution systems), any existing or nonexisting case law by people who hold the Constitution in contempt is irrelevant. You might as well listen to the opinions of some foreign person who loathes our way of life to determine what's right or wrong in America...wait, that's what our leaders in Washington have been doing in the first place.

    And, incidentally, what you're doing, too.

    Come on, Cory. Get with the program. Start supporting your own team. You're an American. Start supporting our Constitution and our way of life. It'll feel good. I promise.


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