Waiting on Drew: Fight continues over health care constitutionality

By Patrick B. McGuigan

Published: 04-Apr-2010

While many federal constitutional analysts have dismissed legal concerns about the new federal health care law, other scholars counter that legal challenges to the law could prevail. Most attention has focused on challenges from Republican state attorneys general. Only scattered references have been made to individual litigation against the law’s new mandates, lawsuits asserting liberty interests the new law may put at risk.

Meanwhile, state government analysts, including this writer, are waiting to see which way Oklahoma Attorney General Drew Edmondson moves. Republicans say they are not irrational in hoping for Edmondson to represent the state in challenging the new law, remembering his decision to join GOP  attorneys general in suing if the “Nebraska Kickback” was in the final bill.

OU Law Professor Rick Tepker has asserted there is no merit to efforts at the state Capitol to enact protective or “opt out” measures, proposals that have been detailed by CapitolBeatOK.

Citing the “Supremacy Clause” of the U.S. Constitution, Tepker has predicted lawsuits to challenge the health care bill will fail. Tepker and other analysts have also said those hoping the Constitution’s listing of enumerated powers will undermine the new law (because health care is not an enumerated power) will be disappointed. “Health care is not an issue reserved to the states,” said Tepker. “We’ve had federal regulation for health care in a variety of ways for the past 50 years.”

However, another OU scholar contends that Attorney General Edmondson, if he decides to act, will have “strong grounds for challenging the constitutionality” of the health care reform passed by Congress.

In a memo prepared for Oklahoma Senate President Pro Tem Glenn Coffee, Michael Scaperlanda, the Gene and Elaine Edwards Family Chair in Law and Professor of Law at the OU College of Law, concluded last week that “Congress lacks the constitutional authority and power to require individuals to engage in economic activity.” While he did not predict the outcome of court action, he said a strong case can be made against the new law.

Scaperlanda cites several cases for precedent, including United States v. Morrison (2000), in which the Court said: “Thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.” Scaperlanda reported that Morrison and other cases “struck down congressional acts regulating non-economic activity that arguably affected interstate commerce.”

In relating that to federal health care reform, the University of Oklahoma scholar contends, “Some might argue that the decision not to engage in economic activity — not to purchase insurance in this case – is itself a form of economic activity, but seems to push the limits of credulity.”

Scaperlanda cites other cases involving interstate commerce, and notes that “there is no interstate market in health insurance.” He asserts, “There are very strong arguments that the individual insurance mandate is unconstitutional as beyond Congress’ power to regulate interstate commerce.”

Finally, Scaperlanda cites New York v. United States, 505 U.S. 144 (1992) and Printz v. United States, 521 U.S. 898 (1997) in stating a precedent that establishes that “unfunded mandates and the commandeering of the states for federal purposes constitute unconstitutional infringements on state sovereignty.”

The Court said in New York v. US, “…the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” Scaperlanda concludes that “there are serious and strong grounds for challenging the constitutionality of the Act.”

In a statement sent to CapitolBeatOK, Sen. Coffee thanked Professor Scaperlanda, while chiding state legislative Democrats who have assailed him and fellow Republican House Speaker Chris Benge for pressing Attorney General Drew Edmondson to intervene in the controversy. “The media has sought out the same old liberal legal ‘experts’ in the past week who claim the state has no standing to challenge this law,” Coffee said.

A recent analysis for Politico, a national online news service, noted that Edmondson still has not “reached a decision on whether he’ll join” a lawsuit being organized by more than a dozen Republican attorneys general.

State Sen. Randy Brogdon, a Republican from Owasso, is seeking the Republican nomination for governor, and is sponsor of one of the proposals Professor Tepker has dismissed as ineffectual.

Thus far, all the proposals to challenge the federal law have prevailed easily in the Oklahoma state Legislature.

Brogdon is taking on U.S. Rep. Mary Fallin, front-runner for the Republican gubernatorial nod. She has been as pointed as any one in her criticisms of Edmondson’s inaction. “What does Drew Edmondson know that the people of Oklahoma and the attorneys general of 13 others states don’t?” Fallin asked rhetorically in a press release. When it was before Congress, Fallin spoke frequently against the health care bill.

Recently, Fallin expanded her criticisms to Edmondson’s fellow Democrat and candidate for governor, Lt. Gov. Jari Askins. Fallin says both of them should tell Oklahomans where they stand, and that Edmondson should sue.

In his longest statement on the issue thus far, sent to CapitolBeatOK  about 12 hours after the law pased in Washington last month, Attorney General Edmondson said, “More than two months ago I told Congress that Oklahoma and several other states have serious concerns with the federal health care bill. Our office joined other attorneys general offices from around the country on a conference call … to discuss ideas and legal strategies to protect our states from unwanted federal intrusion that potentially places us at a disadvantage. We are reviewing applicable statutes and case law to determine the best course of action.”

Edmondson continued, “We will continue to share information with our colleagues as we monitor the progress of the reconciliation bill being considered by the Senate. Should the final product contain constitutional infirmities that adversely impact the states and are not otherwise being addressed, we will consider appropriate legal action.” Subsequent to his post-passage statement, Edmondson chided those who he said are making the issue “a political football.”

While Edmondson and Askins have not explicitly stated their views on the law, and U.S. Rep. Dan Boren (the only Democrat in the congressional delegation) opposed the bill, many Oklahoma Democrats have spoken up for the measure in the past three weeks.