The Legal Conservative

Amending the Constitution by Convention: A Complete View of the Founders’ Plan | Goldwater Institute.  The Goldwater institute has put out an interesting historical argument in support of limited constitutional conventions being contemplated by the founders. Most of the conclusions reached in the report are fairly non- controversial, with the exception of the analysis of whether the first constitutional convention was perceived as a runaway convention because it went beyond amending the Articles of Confederation.

Comes a Horseman – Article – National Review Online. Have you ever wondered where the term “living constitution” originated? Well, this article will give you the answer. Seriously, this article is an excellent read on the change that occurred when FDR threatened to pack the court, and provides a good historical basis to see the origins of progressive legal thought untethered from constitutional restraints that have now led to the issues raised in the health care lawsuit.

This was a busy, but intellectually rich weekend for me. On Friday I was in Orlando speaking at a Republican National Lawyers Association (RNLA) event on voter registration,early voting and absentee ballots, and pre- election legal challenges.  I then had to fly to Atlanta to participate in a symposium that was being co-hosted by the Federalist society and the Liberty Fund, which gathering donated the title to this post.  It was intellectually stimulating in that we had the luxury of actually reading and discussing many of the Federalist papers and the Anti -Federalist writings as well.  This was the first time that I had read many of the Anti-Federalist selections, and it was interesting that some of the problems they anticipated with the Constitution were not realized under the original Constitution, but only after the adoption of the 16th and 17th Amendments.

With a very rapid ruling, oral argument only having been held this morning, the 11th Circuit has preliminarily enjoined Florida from paying our any state funds to McCollum once Scott exceeds the 24.9 million cap. Opinion is attached scotts-appeal-ruling.  Basically, the court held that Scott’s speech would be impaired, Strict scrutiny would apply, no compelling interest had been demonstrated, but even if anti corruption were a compelling interest, the state statute was not narrowly tailored to address that interest.

The Federal Government had just filed its motion to dismiss and memo of law in support in the case Attorney General McCollum filed in the Northern District of Florida, Case No. 3: 1 O-cv-91-RV/EMT.  The memo of law is here DOJ MTD Memo 55-1.  Analysis of the points raised in the motion will follow.

The Federal Government summarizes its case as follows:

Plaintiffs’ challenge to the provisions addressing insurance provided to a State’s own employees fails on jurisdictional grounds and on the merits. The plaintiff States currently offer insurance to their employees and plaintiffs do not allege that their insurance plans are inadequate under the ACA. Thus, plaintiffs cannot show that they will be injured by the provisions they challenge. In any event, it is settled that Congress may impose on State employers the same type of requirements that it imposes on private employers. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1968).

Plaintiffs’ challenge to the minimum coverage provision likewise presents no case or controversy. The provision will not take effect until 2014, and it is entirely speculative whether the individual plaintiffs will be injured. The States and the National Federation of independent Businesses have no standing to challenge this provision either. And the Anti-Injunction Act bars injunctive relief against payment of a tax penalty. See 26 U.S.C. (I.R.C.) § 7421.

Even if plaintiffs had standing to challenge the minimum coverage provision, the challenge would fail. The minimum coverage provision is well within Congress’s authority under the Commerce Clause. Congress rightly understood, and plaintiffs do not deny, that virtually everyone at some point needs medical services, which cost money. The ACA regulates economic decisions about how to pay for those services – whether to pay in advance through insurance or attempt to do so later out of pocket – decisions that, “in the aggregate,” substantially affect the $2.5 trillion interstate health care market. Gonzales v. Raich, 545 U.S. 1,22 (2005). Among other things, Congress found that these economic decisions shift costs to third parties, ACA §§ 1 501 (a)(2)(F), 10106(a); “increas[e] financial risks to households and medical providers,” id. §§ 1501(a)(2)(A), 10106(a); raise insurance premiums, id. §§ 1501(a)(2)(F), 10106(a); precipitate personal bankruptcies, §§ 1501 (a)(2)(G), 10106(a); and impose higher administrative expenses, id. §§ 1501 (a)(2)(J), 10106(a). Congress determined that, without the minimum coverage provision, the reforms in the Act, such as the ban on denying coverage based on pre-existing conditions, would not work, as they would amplify existing incentives for individuals to “wait to purchase health insurance until they needed care,” shifting even greater costs onto third parties. Id. §§ 1501(a)(2)(I), 10106(a). Congress thus found that the minimum coverage provision “is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.” Id. Congress also concluded that requiring the financially able to purchase insurance would spread risks across a larger pool and lower premiums. Id. §§ 1501(a)(2)(I), 10106(a). Congress’s authority under the Commerce Clause and Necessary and Proper Clause to adopt the minimum coverage provision is thus clear.

In addition, Congress has independent authority to enact this statute as an exercise of its power under Article I, Section 8, to lay taxes and make expenditures to promote the general welfare. License Tax Cases, 72 U.S. (5 Wall.) 462, 471 (1867). The minimum coverage provision – in particular, the requirement in the Internal Revenue Code that individuals pay a tax penalty if they do not have the requisite coverage – will raise substantial revenue. The Supreme Court has long held that an exercise of this power is valid even if it has a regulatory function, even if the revenue purpose is subsidiary, and even if the moneys raised are only “negligible.” United States v. Sanchez, 340 U.S. 42, 44 (1950). It is equally clear that a tax predicated on a volitional event – such as a decision not to purchase health insurance – is not a “direct tax” subject to apportionment under Article I, Sections 2 and 9. United States v. Mfrs. Nat ‘I Bank of Detroit, 363 U.S. 194, 197-98 (1960); Tyler v. United States, 281 U.S. 497, 502 (1930).

Having just read this decision, and the evolution of the evolving standards of decency and proportionality review, in addition to the first ever time that I remember the court completing a social study that was cited  by a party, and using it to justify the holding in the case- all I can say is wow- second time in about 20 years I have been rendered speechless by the tortured logic of a U.S.C.T. decision.

08-7412.pdf application/pdf Object.

This really does deserve a fuller review, so more analysis to follow.

Here it is – weekend reading, the amended complaint filed by Attorney General Bill McCollum in the challenge to the constitutionality of the health care act.  Analysis to follow.   AMENDED COMPLAINT FINAL Date Stamped 051410

Experts Split on State Lawsuits Over Health Care Law – NYTimes.com.

Will have to give the times their due, this is a more reasoned explanation of the key issues in the case then most analysis I have seen by the Times.

Attached is a copy of the suit just filed challenging the constitutionality of President Obama’s Health Care Legislation. Analysis to follow, but wanted to get the suit up immediately, it has been filed in Federal Court in the Northern District of Florida.  Healthcare Unconstitutional COMPLAINT (03-23)

Ok, having had time to review the complaint, the basic arguments are summarized below:

1. Congress has no Constitutional authority to pass this healthcare act, not authority under Art I, or specifically the commerce clause or the taxing and spending clause.
2. Congress, by depriving the states of control over their budget processes because of  the unfunded mandates in this bill, has deprived the states of their sovereignty and the right to a republican form of government guaranteed under Art IV, Sec. 4 of the constitution.
3. Congress has violated the states’ 10^th amendment rights by requiring that states and state employees be agents of the Federal Government to enforce Federal Regulation, without federal payment.
4. Congress imposing a tax penalty for failure to have insurance is a violation of Art I, Sections 2 and 9, in that this is a direct that is not apportioned among the states according to a census, and is unrelated to any taxable activity or income.
5. Congress imposing a tax penalty for inactivity or a failure to engage in an activity is in violation of the powers reserved to the States or the people under the 10^th amendment, and is not predicated on any constitutional grant of authority to congress.

Some of you may have wondered whether there would be anymore updates, and the answer is yes- there are plenty of interesting matters to cover. For the past two months I just was caught up in some major client projects- do have to pay the bills after all, and as the father of 4 month old twins, adorable but demanding. look for new posts shortly, and don’t forget to send me suggestions of cases to cover, thanks.