Pawlenty Suggests Minnesota May Join Tenth Amendment Challenge to the Federal Health Bill

225px-TPawlentyMinnesota Gov. Tim Pawlenty (R) appears to have joined those governors threatening constitutional challenges under the Tenth Amendment to any federal health care bill. I discussed these arguments last night on this segment of Countdown and earlier on this segment of the Rachel Maddow show.

When asked about his position, Pawlenty (a presidential hopeful) responded:

Depending on what the federal government comes out with here, asserting the 10th Amendment might be viable option, but we don’t know the details. As one of the other callers said, we can’t really even get the president to outline what he does or doesn’t support in any detail. So we’ll have to see. I’d say that’s a possibility.

Some states like Georgia are calling for challenging the national health care plan on the basis for the Tenth Amendment.

Sens. Judson Hill (R-Marietta) and Chip Rogers (R-Marietta) have been joined by members of the legislator to seek an amendment to their Constitution to allow Georgia to invoke the 10th Amendment to the U.S. Constitution to oppose the use of the health plan in Georgia.

On its face, it is a rather bizarre bill. If the 10th Amendment says what these legislators think its says, they would not need to amend their state constitution — they could stop the program on the basis of the federal constitution. For the Georgia story, click here.

However, to do so would require the Supreme Court to reverse decades of rulings. It is extremely rare for the Court to overturn legislation on this basis. Having said this, there is a great difference between this argument and the extremists in these Texas videos. Federalism is an important part of our Constitution and many of us are great believers in the rights of the states to go their own way on policy and programs. Indeed, I have long advocated greater protection of states in their fight against the federal government in areas like medical marijuana and assisted suicide laws, here.

The Tenth Amendment, however, reads as a more robust protection than the Court has been willing recognize. The amendment itself proclaims: “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.”

Yet, the Court has rarely used the Tenth Amendment to strike down laws. For example, when the Court protected federalism principles in United States v. Lopez, 514 U.S. 549 (1995) — invalidating the Gun-Free School Zones Act of 1990 (the “Act”), 18 U.S.C. § 922(q) — it did so under Article I and the commerce clause.

The Court did rely on the Tenth Amendment to strike down the law in New York v. United States, 505 U.S. 144 (1992), involving a provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985. This provision required states to enforce the federal law. This was the similar result as Printz v. United States, 521 U.S. 898 (1997), where the Court held that the Brady Handgun Violence Prevention Act violated the Tenth Amendment by requiring states to enforce the law.

Yet, most cases follow the result in Wickard v. Filburn (1942), where the Court rejected challenges to federal wheat regulation.

In Gonzales v. Raich, the Court noted “we have reiterated that when “ ‘a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’” In her dissent, Justice Sandra Day O’Connor complained about the sweeping scope of the definition: “”The Court’s definition of economic activity is breathtaking. It defines as economic any activity involving the production, distrubution, and consumption of commodities . . . [T]he Court’s definition of economic activity for purposes of Commerce Clause jurisprudence threatens to sweep all of productive human activity into federal reach.”

The problem with this claim is multifold. First and most notably, the law hasn’t been fully drafted, let alone enacted. Second, if it does contain an “option” for citizens, it is hard to see the state sovereignty objection when citizens can refuse the option. Third, like social security and other social programs addressing national problems, it would be upheld as a legitimate exercise of the national legislature.

This does not mean that the White House might not blow it in the drafting. Requiring states to enforce aspects of the law can be problematic, as shown above. However, the Court has upheld the right of Congress to pressure states into voluntary cooperation by threatening to withhold federal funds.

Given the prior case history, a Tenth Amendment challenge would appear highly unpromising absent a serious mistake in drafting. The Court has left such questions to the political process and critics have certainly done well in that arena thus far. However, if the Administration passes a national health plan with a public option, it could be drafted to pass the tests previously laid out by the Court.

In my view, the most interesting element of the law is the requirement (if it ends up in the bill) that every citizen must have insurance. Individuals have always been allowed to make such decisions for themselves, including young people who prefer to save money and “self-insure.” This is in some ways like a national helmet law. It is treating the individual without insurance as an interstate problem due to the collateral costs on society. That treats a failure of an individual to protect himself or herself as an interstate matter. It certainly stretches the definition of interstate commerce but there is support in these prior cases.

For full story, click here.

35 thoughts on “Pawlenty Suggests Minnesota May Join Tenth Amendment Challenge to the Federal Health Bill”

  1. bdaman writez: I am being sincere when I say a day doesn’t go by without me thinking about the bigoted remark I made. I continue to lose sleep over it. I have now come to understand that it is my punishment from God. I have asked God for forgiveness to no avail.

    oh please.
    why not think about the bigoted person you are instead of the bigoted things you write: the former may help the latter. but ask yourself: is being a bigot something you want to change or just hide when it is discovered?
    your punishment from god thing is a bit of silliness calculated to make people feel sorry for you.
    no sale.
    the good news here is that there is no law that says you can’t be a jew hater.
    why not just be who you are and wail with it?
    I’d have more respect for you if you did.

  2. Fixing the problem that not everybody has health insurance by passing a law that everybody get health insurance reminds me of that joke about the USSR – that nobody went to bed hungry: if you were hungry, you couldn’t go to bed.

  3. tmaxPA,

    I would encourage you to consider a critical reading of Lincoln Unmasked: What You’re Not Supposed to Know About Dishonest Abe by Thomas DiLorenzo:

    From the book:

    “The gatekeepers constitute what I call the Lincoln cult. It is mostly comprised of academics who have spent their careers carrying on the deification of Abraham Lincoln that began with the New England clergy (and the Republican Party) of the late nineteenth century. As a rule, they ignore unpleasant facts about Lincoln, such as his suspension of habeus corpus, his imprisonment of tens of thousands of Northern political opponents during the War Between the States, his shutting down of hundreds of opposition newspapers, his micromanagement of the bombing of Southern cities and the waging of war on civilians, his pledge to support a constitutional amendment prohibiting the federal government from ever interfering with Southern slavery, and his lifelong white supremacist views.”

    An interview with the author is available here:

    http://www.lewrockwell.com/podcast/index.php?p=episode&name=2008-10-02_040_dishonest_abe.mp3

  4. Buddha and Ay I wish I had the wits to join the two of you in your trivial pursuit challenge but feel I would only end up like the Sicilian.

  5. As long as the Federal government is the arbiter of its own powers they will continually expand those powers at the expense of the rights of the People in their own localities. This is why respecting precedent is so silly. The States have every right to resist the unconstitutional expansion (usurpation) of federal power. Madison and Jefferson recognized this right in the Virginia and Kentucky Resolutions. It is not at all far fetched since it was the states which were parties to the Constitution. They created and ratified it. They are its ultimate judge and the true political sovereigns in the American political system.

  6. tmaxpa:

    considering the general welfare Madison said it best:

    “If Congress can employ money indefinitely to the general welfare,
    and are the sole and supreme judges of the general welfare,
    they may take the care of religion into their own hands;
    they may appoint teachers in every State, county and parish
    and pay them out of their public treasury;
    they may take into their own hands the education of children,
    establishing in like manner schools throughout the Union;
    they may assume the provision of the poor;
    they may undertake the regulation of all roads other than post-roads;
    in short, every thing, from the highest object of state legislation
    down to the most minute object of police,
    would be thrown under the power of Congress…. Were the power
    of Congress to be established in the latitude contended for,
    it would subvert the very foundations, and transmute the very nature
    of the limited Government established by the people of America.”

    Looks like he was a very smart man because that is exactly what has happened.

  7. Challenge accepted.

    I say a gentleman’s wager. A bottle of the winner’s choice in poison valued at no more than $50. I’ll take a bottle of Chopin Vodka for your efforts. 😀

  8. Either. Do you accept under the terms and conditions set forth? You do need to make sure that understand them. None of the terms maybe changed once they are accepted. We will take the cranston or willis approach to the interpretation of the contract. No Parol Evidence will be allowed to clarify a term or condition. Dependent upon the amount and time that this takes, what should be the appropriate stake?

  9. I think the appropriate moderator would depend upon the version of the game. I haven’t played in years but I understand they make about a zillion variations of the game now, including video. Last time I played your options were Trivial Pursuit and Trivial Pursuit: Deluxe Edition.

  10. All right BILe, You have now gone and pissed me off. What is it you just live to be of service for to take over Ay’s position to annoy me? You have really done it this time, trying to upstage me.

    I hereby challenge you to a game of Trivia Pursuit. One on One. No call a fried Friend, no mulligans, no do overs, no I want an alternative question none of that I live to be of service shit, ALL weapons will be checked in at the door. The beverage of your choice will flow freely.

    Kiss, Kiss, Smack, Smack. I know you like it like that.

    The above was meant only for humor. With the pure exception of Trivia Pursuit. We do need a moderator who do you propose. This is an actual challenge.

  11. Degrees.

    Got some.

    Almost everything I learned of value I taught myself. Learning is an activity. Getting a degree is just paperwork. The best schools in the world don’t make you smart. They make you more intelligent. They teach you how to think, not what to think. Smart is anyone who has access to a lot of facts. It’s a measure of how good you are at Trivial Pursuit. Everyone knows someone that they say, “He’s got a lot of book smarts but not a lick of common sense.” That’s a smart guy. Intelligence is the ability to find an answer to a question you don’t know the answer to – raw reasoning and logic that provide the tools required to divine the truth of a situation as to the best of your perceptions combined with the intellectual curiosity required to desire finding an answer. It’s the ultimate in adaptability where the other is just rote.

    You can teach anyone to be smart (if the don’t have a memory disorder). You can’t teach everyone to be intelligent. You’re either born that way or with the innate ability to learn the proper skill sets.

    So I don’t put a lot of stock in “credentials” other than it’s a measuring stick of how many books a man has read. It doesn’t mean he understood them.

  12. bdaman,

    You are not just a common man. Think about this, you had the smarts to find this site. Yes?

    I have found that just because someone has degrees behind there name makes them no smarter than others. It is just that I have 4 degrees, no make that 5. I am in some respects not any different than others. I have found that education does not make you any different than anyone else. We all have the same basic needs. Think about it awhile before you respond.

    My grandfather had a third grade education but was smarter than most. As a matter of fact here is a hint. My grandmother died in Jan 62, without a will. Her estate was probated by July 62. My Grandfather died in June 76 and it was not until Jan 91 before the Judge finally forced a settlement on his estate. Oh and he died with a will without an antiterrorism clause. You figure that one out.

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