The breathtaking expanse of the Obamacare bill being hammered out in Washington has generated a great deal of discussion in recent days about the constitutional limits of federal power to engage in such an intense management of a major sector of the nation’s economy, and in particular how such legislation might be viewed under the 10th Amendment of the U.S. Constitution.
That debate is now coming to the forefront in Louisiana, thanks to state senator A.G. Crowe (R-Slidell), who has written a bill for this spring’s legislative session aiming at challenging the constitutionality of Obamacare.
The bill, which can be read in PDF format here, makes a number of legislative findings constructing an argument against the federal government’s power to enforce Obamacare. Among them…
1. Crowe argues that n Printz v. United States, 117 S.Ct. 2365, 521 U.S. 898, 138 L.Ed.2d 914 (1997), the Supreme Court ruled that unfunded federal mandates on the states are unconstitutional; specifically, that states cannot be required by the federal government to provide services for which the federal government doesn’t compensate them.
2. Louisiana law (R.S. 40:1299.34.5) flat-out prohibits public funds from paying for elective abortions outside of the usual exceptions, and as such the provisions for abortion in Obamacare, Crowe argues, would run afoul of Louisiana law.
3. The individual mandate provision in the Obamacare bill, Crowe argues, violates Article I, Secton 8 of the U.S. Constitution, as it goes beyond the scope of the Commerce Clause.
4. In a key provision, Crowe argues that the items, like “Cornhusker Kickback” deal cut by Nebraska’s Ben Nelson, in which that state would be spared from any increases in Medicaid costs as a result of future mandates, violate the Equal Protection Clause in the 14th Amendment and thus makes Obamacare unconstitutional. One can only surmise that recent deals reported last week in which union “Cadillac health plans” would be spared a punitive tax set to be imposed on the American people fall into this same basic thinking of Crowe’s.
5. Finally, Crowe makes the traditional 10th Amendment argument; namely, that since the 10th Amendment delegates powers not enumerated in the Constitution to the “states, or to the people,” and since nowhere in the Constitution is health care addressed the federal government’s ability to conduct broad and intrusive policies like Obamacare does not exist in a constitutional sense.
As such, Crowe’s bill contains a number of provisions aimed at picking a fight with the Feds over Obamacare. Among them…
– “No law or rule shall compel, directly or indirectly, any person, employer or health care provider to participate in any health care system or health insurance plan.”
– “An individual or employer may pay directly for lawful health care services and shall not be required to pay penalties or fines for paying directly for lawful health care services.”
– “The purchase or sale of private health insurance from a private health care system shall not be prohibited by law or rule.”
– “A health care provider may accept or refuse to participate in any health care program or health care insurance plan operated by any government entity and shall not be compelled to do so as a condition of licensure.”
Crowe has also requested that Louisiana Attorney General Buddy Caldwell issue an opinion on the challenges his bill presents to Obamacare on the bases outlined in his bill – unfunded mandates, abortions, individual mandates, the Equal Protection argument regarding the Nebraska deal and the 10th Amendment.
It all makes for a strong fundamental argument about the power of the federal government, and it ties in perfectly with the sentiments and arguments made by the Tea Party movement about federal overreach in health care and other areas. He’s intentionally picking a fight in an effort to get Obamacare into the court system and thus beat it down, and while some of the arguments he makes have previously been litigated to the favor of the “living Constitution” Progressives, the individual mandate provisions and the Cornhusker Kickback/Equal Protection contentions do break new ground and offer a good forum by which it’s possible a win can be had. The abortion funding argument isn’t bad, either. And while the 10th Amendment argument has been a loser in the past several decades, it’s more than worth attempting to make a comeback with it given the federal government’s roughshod treatment of local and private concerns in recent years.
The hope, obviously, among conservatives is that none of this will be necessary because the legislative negotiations to produce a final bill can still fall apart. Here at the Hayride, we’ve posited that tomorrow’s apparent election of Scott Brown to the Senate in Massachusetts’ special election will be a catalyst for “moderate” Democrat support for the bill to collapse, as so many Democrats in both the Senate and the House know this is not just a bad bill, not just an unconstitutional bill, but worst of all it’s an intensely unpopular bill for which their constituents will punish them at the next election and they’re simply not interested in falling on the sword for it.
But in the event we’re wrong, bills like Crowe’s at the state level establishing a 50-state mine field for the implementation of legislation like Obamacare are crucial. One way or another, this thing has to be stymied, and Crowe deserves thanks for standing up to do just that.