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.