Thank God someone in Raleigh knows something about the U.S. Constitution. That someone would be N.C. Attorney General Roy Cooper, who last week told Gov. Perdue that he could not defend the GOP-sponsored challenge to the national health care reform law, since — plain and simple — “State legislatures cannot pick and choose which federal laws the state will obey.” Hopefully, Cooper will also be able to clarify a couple of things about the North Carolina Constitution to the new Republican majority in the General Assembly — but back to that later.
Cooper’s letter to Perdue was initiated by the General Assembly’s passage of the health care court challenge, which includes language telling Cooper he has a duty to defend the challenge in court. Cooper’s objections are on very solid legal grounds. The Republican majority’s bill seeks to block the provision in the federal health care reform law that requires most people to buy health insurance. They say the insurance mandate violates the right of individuals to choose whether to have health insurance. Gov. Perdue had said earlier that she would not sign the bill but would let it take effect without her signature. Insiders now say Cooper’s letter — which also noted that the bill could mean losing Medicaid or children’s health insurance funds — is reconsidering her position.
The constitutional problem stems from the GOPers’ belief, shared by Republican legislators in at least a dozen state legislatures, that they are entitled to, as Cooper put it, “pick and choose” among federal laws. That belief is based on the tenets of the “Tenther” movement, whose adherents quote the 10th Amendment to the U.S. Constitution, which says that the powers not delegated to the federal government “are reserved to the states” or to the people. Unfortunately for the Tenthers, the Constitution’s “Supremacy Clause” in Article VI, clearly states that federal laws “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the contrary notwithstanding.” For nearly as long as the republic has existed, that clause has been held to mean that a federal statute trumps state laws — a view that means the health care challenge bill passed last week is illegal. In fact, no court has ever upheld a state effort to nullify a federal law.
Other Tea Partiers in the General Assembly, including Reps. Glen Bradley and George Cleveland, are preparing additional bills that would overturn federal laws. Cleveland, who apparently stays busy channeling the spirits of secessionists past, declared, “The federal government should not be dictating what we do in the states.”
Anyone who has a grasp of American history knows that these guys are, at best, pissing into the wind. What’s worse, though, is that they’re on the verge of lighting a powder keg they’ve dug up from the cellar of U.S. history, namely the “Nullification Crisis” of the 1830s. That’s when President Andrew Jackson (of Waxhaw) responded to South Carolina’s declaration that it wasn’t bound by a federal tariff by saying that the Constitution “forms a government, not a league” — and telling S.C. that it would abide by the tariff or he’d send federal troops to enforce the law and hang the nullifiers’ leader, John C. Calhoun. In addition, if memory serves me, there was another little set-to in American history that revolved around some states that disliked federal policies so much, they wanted to secede from the U.S. That one didn’t end too well for the nullifiers, either.
Now, yet another constitutional brouhaha is looming in Raleigh, this time involving the N.C. Constitution. House Majority Leader Skip Stam introduced a bill to give $2,500 tax credits to parents who move their children from public to private schools, a move that would essentially subsidize private schools. In addition, another bill would open the way for unlimited numbers of charter schools, set up under an agency separate from the state Board of Education.
The problem this time is that the N.C. Constitution does not allow for state subsidies of private K-12 education. Here it is, chapter and verse: Article IX, Section 2: “The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools, which shall be maintained at least nine months in every year, and wherein equal opportunities shall be provided for all students.” And then Section 5: “The State Board of Education shall supervise and administer the free public school system and the educational funds provided for its support …” A reasonable person would, I believe, conclude that, under the N.C. Constitution, the state is not empowered to subsidize private schools, which is what the tax credit would do. On top of that, the state constitution makes no mention of any publicly subsidized schools being run by any agency other than the Board of Education.
My point here is simply that it would be a good idea if the members of the Tea Party faction in Raleigh, who are so fond of throwing the word “constitutional” around like so much confetti, actually knew what they were talking about.
This article appears in Mar 1-7, 2011.
From Somewhere in a Neighboring State:
Some of this should rub off on the Attorney General of the Commonwealth of Virginia, Gucci Cuccinelli, to dissuade him from continuing down the same path and wasting Virginia taxpayers dollars in his over zealous ( no doubt a direct product and result of his Jesuit Education ) and overarching ambition to make a name as Grand Inquisitor of record in the state of Virginia! Perhaps his emminence would be mollified if he were elevated to Cardinal in the Hierarchy! More than likely though his keen sense of ambition smells a run at the Senate or governorship of this not so “fair” state! There’s nothing more dangerous than a village idiot with a law degree. The fact that he had his origins in New Jersey and has decided to emulate the current Governor of that “fair” state in his prosecutorial zeal just adds to my chagrin!
Former Jerseyite
Article VI and the 10th Amendment are NOT in conflict. They work perfectly well together. The federal government can only make laws covering very few select items. When the federal government makes a law concerning one of these items it will over rule any state law that conflicts with the federal law. The 10th Amendment simply states that any area of control not specifically mentioned belonging to the federal government shall fall to the states and to the people.
The current elephant in the room is Obamacare. Obamacare is not within the set of things that is allowed to be controlled by the federal government. This is why Obamacare will be found to be UNCONSTITUTIONAL. So sure a federal law trumps a state law but the federal law must first be constitutional for it to do so. This also explains why Romney care is constitutional. Romneycare is a state law not a federal law. A state law is not forced to stay within a few enumerated powers.
A federal judge has found that all of Obamacare should be voided. This is the solid legal ground every governor has to stop implementing Obamacare. Roy needs to go back to lawyer school. He is clearly being political by taking such an ignorantly blind stance on the law.
Groomy said “essentially subsidize”. “essentially subsidize” does not equal “subsidize” in the legal world. Of course Groomy knows this or he would not have said “essentially subsidize” in the first place but does it stop him from then quoting all the legal reasons that a subsidized item would be found illegal? Groomy just wasted everyone time by leading them down a false path.
CMS spends about 8,500 dollars on each students each year. If someone gets a tax credit of 2,500 dollars to send their kids to a private school this means that the tax payer only has to pay 2,500 dollars vs. the current 8,500 dollars to keep that child in a failed public school. This is a savings of 6,000 dollars to the tax payer each year. Maybe all of these savings could keep a few libraries open? Why would Groomy leave these important facts out but then take the time to lead people down a false path for an imaginary subsidy situation?
Maybe Groomy can answer these questions but I think he will dodge me as usual and say I made a spelling or grammar mistake or we the reader do not deserve an answer because the sentence structure was just too bad.
Truth to power as the liberals used to say but not anymore.
Article VI and the 10th Amendment are NOT in conflict. They work perfectly well together. The federal government can only make laws covering very few select items. When the federal government makes a law concerning one of these items it will over rule any state law that conflicts with the federal law. The 10th Amendment simply states that any area of control not specifically mentioned belonging to the federal government shall fall to the states and to the people.
The current elephant in the room is Obamacare. Obamacare is not within the set of things that is allowed to be controlled by the federal government. This is why Obamacare will be found to be UNCONSTITUTIONAL. So sure a federal law trumps a state law but the federal law must first be constitutional for it to do so. This also explains why Romney care is constitutional. Romneycare is a state law not a federal law. A state law is not forced to stay within a few enumerated powers.
A federal judge has found that all of Obamacare should be voided. This is the solid legal ground every governor has to stop implementing Obamacare. Roy needs to go back to lawyer school. He is clearly being political by taking such an ignorantly blind stance on the law.
Groomy said “essentially subsidize”. “essentially subsidize” does not equal “subsidize” in the legal world. Of course Groomy knows this or he would not have said “essentially subsidize” in the first place but does it stop him from then quoting all the legal reasons that a subsidized item would be found illegal? Groomy just wasted everyone time by leading them down a false path.
CMS spends about 8,500 dollars on each students each year. If someone gets a tax credit of 2,500 dollars to send their kids to a private school this means that the tax payer only has to pay 2,500 dollars vs. the current 8,500 dollars to keep that child in a failed public school. This is a savings of 6,000 dollars to the tax payer each year. Maybe all of these savings could keep a few libraries open? Why would Groomy leave these important facts out but then take the time to lead people down a false path for an imaginary subsidy situation?
Maybe Groomy can answer these questions but I think he will dodge me as usual and say I made a spelling or grammar mistake or we the reader do not deserve an answer because the sentence structure was just too bad.
Truth to power as the liberals used to say but not anymore.
Moon’s Ruling citing the Commerce clause
At the center of the controversy over the reform law is the so-called individual mandate – the requirement that every qualifying American purchase a government-designated level of health insurance or pay a penalty.
Opponents claim the provision is not a valid regulation of interstate commerce. They say Congress does not have the power to order Americans to purchase a particular product and then levy a fine if the product isn’t purchased.
Congress is attempting to regulate inactivity rather than interstate commerce, these opponents say.
Government lawyers defend the reform measure as a valid exercise of federal power to regulate a national market in health insurance. They say that an individual who declines to participate in the market is making a decision that will have an impact on the market nonetheless. Congress has the power to address that impact through legislation, they say.
Moon agreed.
Congress determined, he noted, that for the health-care reform effort to reduce rates, everyone must be required to participate in the program – including healthy individuals who might otherwise decline insurance coverage.
The issue, Moon said, is similar to a landmark US Supreme Court decision that endorsed congressional regulation of home-grown wheat for home consumption. Although the wheat would never be sold on the market, the high court ruled that Congress could regulate it because it would affect the overall wheat market by reducing demand for wheat that isn’t home-grown.
The same principle applies to health insurance, the judge said. “Far from ‘inactivity,’ by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance,” Moon wrote.
“As Congress found, the total incidence of these economic decisions has a substantial impact on the national market for health care by collectively shifting billions of dollars on to other market participants and driving up the prices of insurance policies,” he said.
A lawyer in the case told the Associated Press that he would appeal Moon’s decision to the Fourth Circuit Court of Appeals in Richmond.
The Economist’s take on the Controversey:
Mandates and the constitution
The commerce clause and health reform
Feb 10th 2011, 19:01 by M.S.
*
*
JUST how much of American economic life should the federal government’s constitutional power to regulate commerce between the states be understood to cover? Pretty much all of it, say liberals. A clearly limited amount of it, say conservatives. Which is a fine argument to have, Matthew Yglesias writes, so long as conservatives aren’t arguing that the restrictive interpretation of the clause is not just correct, but “obviously correct. So obvious that the disagreement about it can’t just reflect larger disagreements about political principles but obviously represents bad faith on the part of liberals.”
A more generous interpretation of why liberals believe that the commerce clause allows the federal government broad authority to regulate economic activity might be that liberals share this interpretation of the clause:
What is this power? It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often they solely, in all representative governments.
Thus Chief Justice John Marshall in 1824, in Gibbons v Ogden. The specific issues in that case are obviously not all the same ones as would be faced today, as they lean a lot on inland navigation, but it’s clear that this is a very expansive reading of the power, and it’s not exactly a newfangled post-modern one unrooted in American tradition. Another way to describe the growth of federal authority under the commerce clause is the one outlined by John Paul Stevens in Gonzales v Raich:
The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.
Basically, the scope of the federal government’s power to regulate interstate commerce led to increased federal regulation of the economy because the portion of the economy consisting of interstate commerce grew. America’s economy is a national economy. It’s not surprising that, as agriculture, industry, services and finance have come increasingly to be dominated by national or multinational firms, the government that has the power to regulate national and international commerce has had increasing sway over economic regulation.
The really crazy thing is that we’re having this argument because the GOP wants to argue that the federal government’s power to regulate interstate commerce doesn’t entail the power to create an individual mandate to buy health insurance, since the act of not buying health insurance shouldn’t be seen as engaging in interstate commerce. And yet the number one plank of the GOP’s counter-proposal for health-insurance reform is to “let families and businesses buy health insurance across state lines,” which would clearly place health insurance in the category of “interstate commerce”. That ought to give the federal government all the regulatory powers the states currently have to regulate health insurance—including Massachussetts’ Romneycare system, with an individual mandate whose constitutionality has never been challenged in court.