Health care bill begs for Constitutional challenge

Along with the devil that lies in the bills’ details lurk serious constitutional issues.

Foremost, Congress lacks constitutional authority to regulate commerce in a way that would compel individuals to purchase government-approved health insurance. If Arizonans pass the Health Care Freedom Act this November, our state constitution will expressly protect our citizens against such a mandate as well as penalties for noncompliance, it also will present serious federalism issues when the mandate becomes effective in 2014.

Likewise, various features of the bills “commandeer” the states to perform various actions as if they were mere functionaries of the federal government, in likely violation of state sovereignty protections under the 10th and 11th Amendments.

Some of the special deals embodied in the bills—such as Nebraska’s exemption from added Medicaid costs, included in the Senate bill to procure Sen. Ben Nelson’s vote—may raise equal protection concerns as well.

Governor Jan Brewer asked Attorney General Terry Goddard to join other state attorneys general in considering a legal challenge to the exemption. Though he called the provision “ill-conceived,” Goddard declined to examine its legality because it has not yet passed. That’s too bad considering that threat of a legal challenge by a Democrat Attorney General could influence the debate over reconciliation of the two versions of the health care bill.

Even if the Attorney General decides to abrogate his duty to defend the state against unconstitutional actions by the federal government, the Goldwater Institute stands prepared to defend state sovereignty and the rights of Arizonans.

Clint Bolick is director of the Goldwater Institute Scharf-Norton Center for Constitutional Litigation.

Learn More:

Goldwater Institute: States can set up federal fight on health care reform

Goldwater Institute: Removing the Middleman: What States Can Do to Make Health Care More Responsive to Patients

The Wall Street Journal: Why the Health-Care Bills Are Unconstitutional

Arizonans for Health Care Freedom: Freedom of Choice in Health Care Act