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. tmaxPA,

    I’m not telling myself any kind of comforting tale. If I were it’d involve cheesecake and a supermodel (in no particular order).

    You might be though.

    First, “The Civil War was most definitely about owning and/or freeing slaves. Anyone who says otherwise is pumping smoke or in denial.” Simply wrong. The war was mostly about economics, like almost all wars not about religion. This one was no different. To paint it as “all about the slaves” is both disingenuous and historically a fable not based in fact. Slavery was a contributing cause, not the sole cause. To insist slavery was the primary cause is both simplistic and innacurrate. There were huge trade inequities caused by the North’s domination of manufacturing and the South’s dominance in cotton and food production. There were deeply rooted differences in religious traditions of the populations in the North and the South. There was vast disparity in the quality of infrastructure and life in general between the two regions. That list is no where comprehensive in identifying the underlying causes lead into the war.

    Yeah, slavery was AN issue. It wasn’t THE issue.

    There is also the blatant bias in your initial statement. It is you speaking in absolutist terms and with prejudice as based or your “anyone who says otherwise is pumping smoke or in denial” qualifier. You are pointing to yourself as the definitive truth speaker on Lincoln and disparaging any other view right out of the gate. That’s prejudicial bias. Your mind on Lincoln is made up.

    Too bad how you’ve made it conflicts with history.

    Second, all of the above statements about Lincoln were true. I neither portrayed him as devil nor saint, merely as a deeply flawed man that many historians (IMO wrongfully) place on a pedestal. That you disagree is of no consequence as the facts from record plainly show Lincoln’s concern for the slaves was indeed secondary. He may have personally been aligned with the sentiments of the abolitionists, but it is undisputed that he’d have conceded on slavery to save the Union as a practical political matter. This is not to say there was not popular support for emancipation in the Union rank and file. By 1861, many of the letters home reveal soldiers coming to the conclusion that emancipation was going to be required – a full year before politicians got behind the idea and before Emancipation Proclamation was issued. This is often the case in war that soldiers on the ground realize the truth of a situation much faster than their leadership. At best, Lincoln was behind the curve on realizing the necessity of emancipation and he was so because like most politicians he was holding his cards close to his chest in case he had to sell out his principles for and expedient political solution to maintain Union. That fate allowed his personal beliefs to align with political necessity is chance. Providence that makes Lincoln look far more heroic than he was. This doesn’t detract from the fact that when the time came, he did indeed to the right thing.

    That you cannot reconcile this to the fantasy image of Lincoln you’ve either constructed or been fed would be your denial. The causes of the Civil War were much more complicated than you give credit just as Lincoln was a man, not a superman.

  2. buddha;

    Sorry, but bdaman has you. Lincoln kept slavery out of it as long as possible.

    Lincoln was a masterful politician in many regards. This was one of them. The claim bdaman made, as with yours, references only his political actions, but seeks to impugn his personal motivations. Lincoln was always an abolitionist. As I said before, that isn’t the same as saying he thought he had dictatorial powers and could eradicate slavery with a few marks of a quill.

    In short, Lincoln was in practice an amoral politician much like the scumbags we are blessed with today.

    In truth, you are telling yourself a comforting tale, no less than those who would claim that Lincoln was a saint. Just more cynical. I am not attempting to anoint his moral character when I point out he was an abolitionist; I am merely stating the case.

    But being anti-slavery personally is not the same thing as being anti-slavery politically, and despite our 20-20 hindsight, I refuse to claim he was merely being a moral cowards by not ‘standing up for his beliefs’ and demanding things he wasn’t going to get.

    I won’t even respond to bdaman’s retelling of Federal actions before and during the Civil War. It sounds an awful lot like a well-rehearsed bit of misrepresentation concocted using the literary talent of the Sons of the Confederacy.

    I don’t know what credentials either of you might have (though there is no doubt in my mind they are ostensibly superior to my own, which are non-existent) but please don’t try to sound like your’s is a more historically accurate telling than any other. These “politically incorrect” versions are about as relevant to real history as, well, any other bit of fiction.

  3. Bdaman,

    I think you misinterpret it as “score keeping”. Lincoln did some other questionable things, like suspending habeas corpus (the worst precedent of his tenure; see Cheney, Dick), imprisoning reporters who disagreed with him and not keeping some of his General who were of the criminal/war criminal mode under better control (see Sherman, Gen.).

    From what I’ve read, Lincoln personally did not like slavery care for it. In the Douglass debates he declared his hatred of the practice and the expansion of the “peculiar institution”. This does not change that Lincoln used slavery as a political chess piece most of the time. I’ll even stipulate that the Emancipation Proclamation would not have come about absent political pressure because Lincoln was willing to turn a blind eye to the internal slave trade if that would have brought the Confederacy to the table. When it didn’t, due to internal party pressures, he started using slavery against the South by doing things like debating Douglass and characterizing slavery as an evil to help bolster support against the South. It wasn’t because his primary concern was with the slaves – Lincoln never took his eye of the “union” ball.

    In short, Lincoln was in practice an amoral politician much like the scumbags we are blessed with today. I also think his one good action has been glossed over by historians to make him sound like a super man when he most clearly wasn’t. If he hadn’t abolished slavery, he’s likely be considered a villain for his other actions (and as he should be). There are many reasons I never list Lincoln when the subject of favorite Presidents comes up.

    It’s also why I love Jefferson. He was forced to drop the issue of emancipation from some of his works by political pressure, but in addition to being the smartest man to ever hold the job of President, he was an abolitionist to the bone (no tawdry pun intended).

    However . . .

    None of that changes the fact that when the chance came to do the right thing, freeing the slaves, Lincoln did the right thing. That’s his motives were impure is another issue.

  4. By the way Buddha, although we agree to disagree on some matters it is nice to see you back. The disagreements always have you and Mike S. in my mind 24/7. 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.

    I hope that with JT’s recent decision in reference to the civilty of this blawg we can carry on with discussion without name calling and personal attacks. JT I know has his hands full but he may be better served appointing a moderator. As much as I hate to admit it, Vince Treacy would be the perfect person.

  5. In this instance, it is not a matter of score as Buddha points out, but a matter of the view of the glass, half empty or half full. In the end Lincoln did do the right thing. However lets examine the glass.

    A man has been a law abiding citizen all his life and a pillar in the community. One day he commits an unprovoked murder. Should he be judged differently than a man that has committed crime time and again and has also committed an unprovoked murder?

    A man is a criminal and one day commits an unprovoked murder. He runs and becomes a law abiding citizen, a pillar in the community but is caught years later. Should he now be judged differently because he reformed himself?

    Lincoln said and did many things. How you were taught to think of him becomes the question. President Obama seems to hold Lincoln as a mentor, after all he swore and received the oath to defend the constitution on it. How does the president really feel about Lincoln. Could it be he admires Lincoln for other reasons.

    Lets look at the other half of the glass.

    In the 1850s, as the Republican Party came to power, they and their Whig allies, in order to help their Marxist oligarchs and financial backers, while building the Imperial Federal government, placed heavy export duties on American goods. At that point, most of those goods came out of the South. Thus it came to pass that 30% of the American population was paying for 70% of the Federal budget. The government was growing quickly, making an onerous yoke upon the people. The same holds true today. However, the German/English stock of the North seemed to enjoy this, while the Scots Irish of the South chaffed. As such, at this point, with the election of Abraham Lincoln, a dedicated Red, the Southern states, in their individual assemblies voted overwhelmingly to secede, as was their right at the time under the US Constitution.

    Lincoln and the Republicans would have none of that. The problem was, much of the North was against any kind of war and while choosing not to leave the Union, actively supported the South’s rights. To that end, Lincoln suspended the right of Habeas Corpus and without charges, began the mass arrests of his enemies and critics. With Republicans and Whigs the majority of Congress, his edicts were rubber stamped, little different from those of another despot in the 1930s and 1940s, Adolph Hitler and his Reichstag.

    48,000 people were imprisoned by Lincoln, without trial, their lands confiscated, their reputations destroyed, their lives ruined, all this by the “champion” of the Constitution. He further forbade the post service from delivering any newspaper or magazine that dared to criticize him.

    Licoln was a tyrant by no small degree. Historian Clinton Rossiter, in the “Constitutional Dictatorship”

    “Dictatorship played a decisive role in the North’s successful effort to maintain the Union by force of arms…one man was the government of the United States…Lincoln was a great dictator. The great constitutional dictator was self appointed.”

    Military prisons were quickly filled up. Congressman Vallandigham from Ohio, who had made speeches defending the Constitution, had his own door busted down at 0230hrs on 3 May 1863. He was first imprisoned and tried by a military commission and than deported from the US. That is correct, a Congressman from the US Congress. It is rather interesting that in his last speech before his arrest, he stated that for those who supported Lincoln: Defeat, debt, taxation [and] sepulchers – these are your trophies. He further denounce King Lincoln.

    Poster TJ Colatrella has the same idea, quote

    If it came to it and a governor clearly crosses that line it might be that I would have him charged with contempt or conspiracy and have him dragged out in the middle of the night by Federal Marshall’s and placed in Federal custody…

    TJ are you somehow making a reference to Lincoln or is this your belief?

    You see, General Burnside had declared that there was a full suspension of the freedom of speech and assembly in the military district of Ohio.

    Did the American public rise up? In majority no, though there were protests and draft riots, to which Lincoln answered with rank fire from his infantry divisions, mowing down protesters. Yet to all this, the country of 1860s did not rise up in rage. Look were we are now. Approximately 2 Million people showed up in DC yesterday to protest.

    When the state senate of Maryland voted to stay in the Union but not to condemn the Confederacy for leaving, Lincoln had half the senate arrested. They were soon joined by the mayor of Baltimore. This is the same Lincoln who at Gettysburg proclaimed: “A government of the People, by the People, for the People.The grandson of Frances Scott Key, Frances Key Howard, editor of a newspaper critical of Lincoln, was imprisoned at the very same prison as his grandfather had been by the British: Ft. McHenry, Baltimore.

    Lincoln’s audacity went so far as to even issue an arrest warrant for the 83 year old Chief Justice of the Supreme Court Roger Taney, who ruled that several of Lincoln’s commands and orders were anti-constitutional. His arrest was never carried out, though, as the political whip lash may have been to great even for Lincoln to bare.

    Lincoln, of course, as any good despot, had many willing sociopaths to go along with his plans. Amongst these were Oliver Hazard Perry Throck Morton, the Civil War governor of Indiana and a founding Republican. During the war he set up a secret police to monitor any pro-Confederacy sentiment and crush all opposition to Lincoln’s decrees. The police were run under Henry B. Carrington, a Brigadier General in the Union Army. Arbitrary arrests, suppression of the Bill of Rights were the norm, resulting in a state wide repression.

    Your homework here is to look at what this administration has done since 1-20-09 and see if there are any parallels to Lincoln.
    Is the glass half full or half empty.

  6. bdaman,

    Nice work.


    Sorry, but bdaman has you. Lincoln kept slavery out of it as long as possible. This in no way diminishes Lincoln but it does show the political reality he faced. If he’d put slavery first? He’d have basically been telling the South that he was going to take away their ability to make a living as slavery was so ingrained into the agricultural production to remove it would have simply shattered their local economy and, ergo, ruining any chance at peacefully saving the Union. As it was, peaceful resolution ended up being off the table anyway. When the time came to do the right thing, Lincoln did. That’s the important thing and the true measure for his legacy.

  7. Lincoln – Letter to Horance Greeley (a Marxist) editor of the New York Tribune, 22 Aug 1862:
    “My paramount objective in this struggle is to save the Union and is not either to save or destroy slavery. If I cold save the Union without freeing any slave, I would do it.”

  8. Fourth Debate with Stephen A. Douglas at Charleston, Illinois, September 18, 1858:
    “I will say then that I am not, nor ever have been in favor of bringing about in anyway the social and political equality of the white and black races – that I am not nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe will forever forbid the two races living together on terms of social and political equality. And inasmuch as they cannot so live, while they do remain together there must be the position of superior and inferior, and I as much as any other man am in favor of having the superior position assigned to the white race. I say upon this occasion I do not perceive that because the white man is to have the superior position the negro should be denied everything.”

  9. I would be following further discussion of the challenge to the individual mandate, as JT mentions. It will be one of the most visible and painful parts of this new system, and will quickly move to the forefront of the debate as the legislation advances:

    “The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

    Both for reasons of constitutionality and palatability I expect that any individual mandate will not last very long. Ultimately care will be universal and “paid” by individuals through higher taxes. Or we may not pay for it at all, and just monetize it through inflation along with much of our current entitlement and illegal war spending. It is much harder for Congress to ask people (particularly young people) to write a large check to private insurers than to simply further reduce their net take home pay and create the illusion that health care is “free”.

  10. Damn roman numerals!

    I meant Section VIII, section 8, of Article I, not section 13.

    The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

  11. The thing the Tenthers seem to want to ignore is how in Articlen I Section XIII, Congress is given the power to make any law necessary to protect “the general welfare”.

    I’m wondering if any of the actual legal minds here could enlighten us on how this clause seems to have gotten so limited.

  12. States trying to object to healthcare under the 10th Amendment put themselves in the position of trying to deny an option for their citizens that is freely available to every citizen in the country. By opposing it as an issue of sovereignty or a state right they characterize the matter of the option, health care, as itself a right.

    By objecting in this way, and inevitably failing, they codify the whole argument that health care is a right.

    Perhaps we should set up a fund to help them in their effort.

  13. The Civil War was most definitely about owning and/or freeing slaves. Anyone who says otherwise is pumping smoke or in denial.

    Lincoln didn’t go to war to free slaves; he went to war to save the Union. The reason the Southern States left the Union? Slavery.

    Your attempt to cast aspersions on Lincoln’s good name notwithstanding, he was always in favor of abolishing slavery. He did not know if it was legal to do so, but he had always been in favor of doing it.

  14. I think when governors speak openly of Secession in particular not just this 10th Amendment dubious issue as well as state legislators even perhaps they should be subject to Federal Charges…for fomenting rebellion…

    We didn’t fight the Civil War for nothing…and we owe it to those who died in it, and we owe it too Lincoln as well..

    If it came to it and a governor clearly crosses that line it might be that I would have him charged with contempt or conspiracy and have him dragged out in the middle of the night by Federal Marshall’s and placed in Federal custody…

    It may come to that eventually…this trend is growing not diminishing, as I see it…

  15. Dredd
    Basically these guys want to fight the civil war again. Those lingering, festering racial problems have never been faced and healed.

    The Civil War was not about freeing slaves, therefore it was not about race. People want to think that Lincoln went to war to free them but he was a man who had nothing but contempt for the slaves he supposedly freed, he did not.

  16. It sounds quite like the GOP position during the Stmulus Package debate. Do these guys really think it’s in their or their states’ best interest to tell their citizens that these politicians feel they’re shouldn’t have and therefore are not going to get health care coverage? Is that really a statement they want associated with their names?

  17. This will be just like the federal mandate that states that in order to receive DOT Funds you have to do such and such or 5% will be withheld. Well hello 5% can be a lot of money.

    Then we have the Uniform Commercial Code. Ok, that one is still subject to each states laws but basically the same. If it were not for the greedy bankers, it would be different.

    With Child Support and all of the other attending attachments to it, we have the UCCJEA and all the others as well. Mandated by the Feds. These were adopted by ALL STATES. Why Federal money, Federal programs. If you are familiar with the Federal Acts in relation to children the states adopted them with little state exception. I could bet you I could go to any state and argue the Federal Law and get the state law correct 95% of the time. I believe that soon divorces will become a federal case, after all. After all it is another way to keep track of property. Do not forget the feoffment from the King. Your due will be paid.

    Estate Planning, Will, Estates, Trusts etc. Federal Law again makes up 90% of the state laws. Preemption not yet. Damn close.

    I could go on and on. SSN and state DL are all correlated why? MI was the hold out state. Even a Republican SOS fought that correlation.

    I may not be the brightest bulb in the box, but certainly not the dimmest either.

    So good luck exempting out of the health care. Federal Case law states that you must treat all people regardless of insurance or not. Make that call and see how much it will cost you in the long run.

    What is not already federalized will soon be. Think about it.

  18. The XXVIII amendment grants power to State Governors to describe the internet as a series of tubes, hike the Appalachian Trail, and just plain make stuff up.

  19. I watched the professor on Countdown. Keith was not hosting. The discussion about the Tenth Amendment was enlightening.

    Basically these guys want to fight the civil war again. Those lingering, festering racial problems have never been faced and healed.

    If the challenges were coming from Massachusetts, Vermont, or other areas around the original 13 colonies, the debate would likely be more persuasive.

    Like the professor said, there is a valid argument that rights should stay as close to the people as possible, and some to the states, instead of morphing only toward federal power.

    Condensation of power into one place is a trend in a historically unsafe direction.

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