Many good folks might be concerned with the future of the multi-state lawsuit against the recently passed federal legislation which mandates the purchase of insurance as a condition of citizenship. The concern, based on the very real possibility that Michigan could lose an AG office to forces (Michigan Democrats) who have no respect for the constitution or its limits on government, and would likely result in the case being dropped.
I shared this concern, and asked about that possibility.
Fortunately, there are several things going on that we can look to as good news. One of them was the response by Michigan Solicitor General Eric Restucia, who said with so many (13 initially, and possibly 20 soon) states who have signed on to the lawsuit, it would require ALL states to drop the suit for it to fail. Restucia, in a conference call on Wednesday, said the suit was unprecedented as an action that unified so many states against federal legislation. He also said the suit would likely take several years to reach its conclusion.
According to Restucia, The arguments being made will fall into these categories.
- A 10th amendment claim, where states are responsible for such issues
- A claim under equal protection and application, which cannot be done.
- A claim is under the commerce clause, as it is being misapplied.
The federal suit is filed in the northern District of Florida with 13 initial states’ offices participating, five other states joining almost immediately, and 2 more considering it. “That would bring us to 20 states as plaintiffs when all said and done,” Restucia said. He also mentioned that it “was no more than 90 minutes from the time the bill was signed before Attorney General Mike Cox filed the lawsuit” with Fla and others.
Beyond this lawsuit, there other equally powerful things happening, and the Michigan Health Care Freedom initiative is one of them. The Initiative will amend the state’s constitution with the following language:
AMENDMENT TO THE CONSTITUTION
A Proposal to Amend the Constitution of the State of Michigan by adding Article 1, Section 28 as follows: (new language below is in CAPITAL letters)
(7) AS USED IN THIS SECTION:
(A) “COMPEL” INCLUDES PENALTIES OR FINES.
(B) “DIRECT PAYMENT” AND “PAY DIRECTLY” MEAN PAYMENT FOR LAWFUL HEALTH CARE SERVICES WITHOUT A PUBLIC OR PRIVATE THIRD PARTY, NOT INCLUDING AN EMPLOYER, PAYING FOR ANY PORTION OF THE SERVICE.
(C) “HEALTH CARE SYSTEM” MEANS ANY PUBLIC OR PRIVATE ENTITY WHOSE FUNCTION OR PURPOSE IS THE MANAGEMENT OF, PROCESSING OF, ENROLLMENT OF INDIVIDUALS FOR, OR PAYMENT FOR, IN FULL OR PART, HEALTH CARE SERVICES, HEALTH CARE DATA, OR HEALTH CARE INFORMA- TION FOR ITS PARTICIPANTS.
(D) “LAWFUL HEALTH CARE SERVICES” MEANS ANY HEALTH-RELATED SERVICE OR TREATMENT, TO THE EXTENT THAT THE SERVICE OR TREATMENT IS PERMITTED OR NOT PROHIBITED BY LAW, RULE, OR REGULATION, THAT MAY BE PROVIDED BY PERSONS OR BUSINESSES OTHERWISE PERMITTED TO OFFER THOSE SERVICES OR TREATMENTS.
(E) “PENALTIES OR FINES” MEANS ANY CRIMINAL OR CIVIL PENALTY, FINE, TAX, SALARY OR WAGE WITHHOLDING, SURCHARGE, OR ANY NAMED FEE WITH A SIMILAR EFFECT ESTABLISHED BY GOVERNMENT ACTION, THAT IS USED TO PUNISH OR DISCOURAGE THE EXERCISE OF RIGHTS PROTECTED UNDER THIS SECTION.
(F) “GOVERNMENT ACTION” MEANS ANY EXECUTIVE, JUDICIAL, OR QUASI-JUDICIAL ACT, INTERGOVERNMENTAL COMPACT, STATUTE, ORDINANCE, RESOLUTION, OR RULE MADE BY ANY GOVERNMENT-ESTABLISHED, GOVERNMENT-CREATED, OR GOVERNMENT-CONTROLLED AGENCY.
ARTICLE I, SECTION 28.
(1) EVERY PERSON HAS A RIGHT TO PROVIDE FOR HIS OR HER OWN HEALTH CARE.
(2) NO GOVERNMENT ACTION SHALL COMPEL, DIRECTLY OR INDIRECTLY, ANY PERSON, EMPLOYER, OR HEALTH CARE PROVIDER TO PARTICIPATE IN ANY HEALTH CARE SYSTEM.
(3) NO PERSON OR EMPLOYER SHALL BE REQUIRED TO PAY PENALTIES OR FINES FOR PAYING DIRECTLY FOR LAWFUL HEALTH CARE SERVICES. A HEALTH CARE PROVIDER SHALL NOT BE REQUIRED TO PAY PENALTIES OR FINES FOR ACCEPTING DIRECT PAYMENT FROM A PERSON OR EMPLOYER FOR LAWFUL HEALTH CARE SERVICES. A HEALTH CARE SYSTEM SHALL NOT BE REQUIRED TO PAY PENALTIES OR FINES FOR PERMITTING A PERSON OR EMPLOYER TO PAY DIRECTLY FOR LAWFUL HEALTH CARE SERVICES OR FOR PERMITTING A HEALTH CARE PROVIDER TO ACCEPT DIRECT PAYMENT FROM A PERSON OR EMPLOYER FOR LAWFUL HEALTH CARE SERVICES.
(4) NO GOVERNMENT ACTION SHALL DISADVANTAGE A HEALTH CARE SYSTEM FOR PERMITTING A PERSON OR EMPLOYER TO PAY DIRECTLY FOR LAWFUL HEALTH CARE SERVICES OR FOR PERMITTING A HEALTH CARE PROVIDER TO ACCEPT DIRECT PAYMENT FROM A PERSON OR EMPLOYER FOR LAWFUL HEALTH CARE SERVICES.
(5) SUBJECT TO REASONABLE AND NECESSARY LAWS AND RULES THAT DO NOT SUBSTANTIALLY LIMIT A PERSON’S OR EMPLOYER’S OPTIONS, THE PURCHASE OR SALE OF HEALTH INSURANCE OR HEALTH COVERAGE IN PRIVATE HEALTH CARE SYSTEMS SHALL NOT BE PROHIBITED BY ANY GOVERNMENT ACTION.
(6) THIS SECTION DOES NOT DO ANY OF THE FOLLOWING:
(A) AFFECT WHICH HEALTH CARE SERVICES A HEALTH CARE PROVIDER IS REQUIRED TO PERFORM OR PROVIDE.
(B) AFFECT WHICH HEALTH CARE SERVICES ARE PERMITTED BY LAW.
(C) PROHIBIT CARE PROVIDED PURSUANT TO, OR PROHIBIT PARTICIPATION UNDER, THE WORKER’S COMPENSATION LAW OR AUTOMOBILE NO-FAULT LAW.
(D) AFFECT GOVERNMENT ACTIONS IN EFFECT AS OF JANUARY 1, 2010.
One friend quips: “If necessary, we kill this unconstitutional bill by a thousand paper cuts.
Indeed we shall. And in one way or another it MUST HAPPEN.
The very possibility that the bill is repealed is a quite slim one, unless an absolute majority of both houses is the result of November’s elections. Though there are a number of politicians campaigning on such promises of repeal, it will not likely happen until 2013, and even then it might be nearly impossible. From the Investors Business Daily:
Republicans vow to repeal health care reform. But no social entitlement, once signed into law, has ever been overturned. The way to stop this federal overreach is through the courts.
And later in that same article:
The nation’s best chance to kill this monstrosity before it can ruin the best health care system in the world is to get the courts to declare it unconstitutional.
The “individual mandate” is a violation of the 9th and 14th amendments. The Commerce Clause gives Congress the power to regulate the health care industry on issues of interstate trade. It does not give it the authority to force individuals to buy a service from private industry. This is unheard of. Even in World War II, the feds did not make citizens buy war bonds, for instance.
If it could be overturned in the legislature, it might well signal a resurrection of constitutional governance, which would be a great thing indeed for a country which has back slid to the worst of progressive ideals. In the mean time however, we need to push back with as much vigor, and participation in the process as we can each afford. Lest we become no better than what we see in Venezuela or Cuba.