Health law tramples on the Constitution

The U.S. Constitution established a federal government possessed of limited and enumerated powers, leaving general powers of health, safety and welfare to the states.

This unique system of federalism, in which both the federal government and states exercise distinctive and separate authority, is a core feature of our country’s constitutional architecture. The framers believed that diffusing overall governmental power ­— or in other words, providing for state sovereignty — was the best way of protecting individual liberty.

Americans have always insisted the federal government’s authority be held in check.  Accordingly, it is not surprising most Americans readily recognize that having the federal government coerce a person to buy a product against his or her will exceeds any conceivable reach of constitutional power.  Yet, this is exactly what the Patient Protection and Affordable Care Act’s (PPACA) individual mandate does — it requires individuals who are not in the health insurance market to purchase health insurance. As Judge Hudson said of congressional power under the U.S. Constitution in the Virginia’s PPACA lawsuit, “Never before has the Commerce Clause and the associated Necessary and Proper Clause been extended this far.”

The Florida lawsuit brought by 20 states and the National Federation of Independent Businesses challenges the PPACA’s individual mandate and also attacks other PPACA provisions, which vitiate state sovereignty.  During recent oral argument in Pensacola, Judge Vinson questioned whether the federal healthcare law “puts states on the short end of the stick,” whether “states are in a Catch-22 situation” and whether “states are left almost powerless.”  This is the essence of the Florida lawsuit and its challenge on state sovereignty grounds — will states continue to play an equal and viable role in American government?

To ensure state sovereignty does not become a mere slogan, courts have always sought to answer the question: Is there a limit to what Congress is trying to do? This notion of a limiting principle is critical. Without it, states are left at the mercy of the federal government. Courts have struck down federal statutes for “commandeering” states resources.  In New York v. United States, the U.S. Supreme Court held that “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”   Additionally, courts have considered whether federal laws “coerce” states to act.  In South Dakota v. Dole, the U.S. Supreme Court reasoned “the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’” 

In the healthcare-law litigation pending in Pensacola, we argue the new Medicaid expansion contained in the PPACA violates state sovereignty by denying states any choice over the new Medicaid requirements and further denying states the flexibility to limit the fiscal impact of those Medicaid changes. While Congress has tweaked Medicaid eligibility standards in the past, never before has Congress compelled the states to provide healthcare services to people above the poverty line using state tax dollars.  And while the federal government promises to pay $450 billion of the additional Medicaid costs — a commitment no one can enforce — the states must bear an additional $20 billion when they are already squeezed by the current state budget crises.  Florida alone will suffer more than $1 billion annually in additional taxpayer costs for the Medicaid expansion — in a state with a budget shortfall and a balanced budget requirement. If such limited state tax dollars must be used to satisfy new federal mandates, it puts schools, transportation and public safety on the cutting block as states will be left with no choice — either raise taxes or cut vital services.

At its core, the states’ lawsuit is a claim that federalism under our Constitution is in the balance.  One outcome will allow states to continue to be partners in healthcare programs and its costs; the other will rework our Constitution, diminish individual liberty and visit the specter raised by Judge Vinson upon States, left unable to adequately address the traditional concerns of their citizens.

McCollum is the attorney general of Florida