Indeed, it has been just over three months since Republican Scott Walker took the oath of office as the Governor of Wisconsin. Now known across the country as the maverick who had the nerve to take on the powerful government employee unions in only his first month in office (or by opponents as the union-busting supply sider), the mild-manner preacher’s son was off to a fast start in the weeks before he proposed sweeping changes to the collective bargaining power of public employees.
Before he even took office, Walker surprised many when he turned down $800 million in federal transportation funding for a high speed rail project he had said during the campaign that the state did not need and could not afford to maintain.
Immediately upon taking the oath of office, he called the legislature into special session; getting both houses (now brimming with newly-minted GOP majorities) straight to work on economic development proposals. Several of his bills passed with bipartisan support. and became law by the middle of February. These included passing long standing GOP initiatives like tort reform and HSA incentives to new proposals like revamping the state’s Commerce department into a public-private economic development agency.
And then, he proposed curbing the powers of public employee unions….
Fourteen fleeing state senators, thousands of work-skipping teachers, three weeks of Capitol Sleep-ins and one protest speech by Michael Moore later, and we’ve reached this first milestone. It is the one by which most governors are judged on the construction of their cabinet, their use of the bully pulpit and maybe the ability to get a piece or two of legislation passed, or at least significantly advanced.
MacIver’s Bill Osmulski sat down with Governor Walker and asked him for his thoughts on the first 100 days of his administration.
In his decision, U.S. District Judge Roger Vinson focused on the law’s “individual mandate,” which required Americans purchase health insurance or face a penalty.
“This has been a difficult decision to reach, and I am aware that it will have indeterminable implications,” Vinson wrote. “Because the individual mandate is unconstitutional and not severable, the entire act must be declared void.”
Officially dubbed the the Patient Protection and Affordable Care Act, the bill is commonly referred to as Obamacare–after the President who exerted a great deal of political capital to get the law passed last year.
Regardless of what side people take on the individual mandate in the new Federal Health Care Law, everyone agrees there is a great deal at stake in the lawsuits filed by 28 states (and assorted interested parties).
The Federalist Society in Madison recently invited supporters and critics of the mandate discuss the issue.
Representative Jon Richards (D-Milwaukee) argued for it. Attorney General J.B. Van Hollen and Illya Somin, George Mason University Associate Professor of Law, argued against it.
The national debate has centered around the interstate commerce clause in the US Constitution, which authorizes Congress to regulate commerce between the states. Arguments surrounding that clause also dominated the debate at the luncheon last week.
Activity Versus Inactivity
Opponents of the mandate argue commerce is an activity. If you do not something that is inactivity, they say. The constitution does not regulate inactivity, and therefore, the commerce clause cannot force one to buy health insurance.
Supporters say that is a technicality. As Richards explained it, the point is a “technical legal conception that conservative members of Congress brought to the attention of the court.”
To Richards the mandate is more about ensuring people do not freeload off of the system, only buying insurance once they need it.
Most Health Insurance Markets Do Not Cross State Lines
Opponents of the mandate point out that even when an individual chooses to buy health insurance, rarely can one purchase it across state lines. That means it does not qualify as “interstate” commerce.
Economic decisions and their impact
Supporters of the mandate say the commerce clause applies to economic decisions that have an economic effect. If one does not buy health insurance, that decision will effect the price of insurance for those that do.
Opponents of the mandate are terrified by that kind of logic.
“The problem with this kind of argument is this can apply to any decision anyone makes of any kind,” said Somin.
Health Care is Special?
Supporters of the mandate state health care is the only service/product a seller is required by law to provide you whether you can pay for it or not. Health care is also something everyone will require at some point in their lives.
Opponents argue this is confusing the issues of health care and health care insurance. Not everyone will need insurance to pay for their health care, and therefore everyone will not use health insurance at some point in their lives. Furthermore, this would be an example of the government imposing regulation on an individual for something they may or may not do voluntarily in the future.
In his decision, Judge Vinson took aim at the individual mandate and rejected arguments that health care is an extraordinary issue.
“It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause,” Vinson wrote. “If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted.”
Perhaps in a nod to the ‘Tea Party’ movement that galvanized opposition to the measure, Vinson makes an overt reference to one of the tax revolts that led to the American Revolution.
“It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place,” he wrote.
The debate over the mandate extends beyond the merits of the provision itself. There are also some far reaching implications on what it could allow Congress to do in the future.
It is widely speculated that today’s decision will be appealed. If so, Wisconsin’s Attorney General vows to continue to his efforts.
“Now, we wait to see if the federal government has finally gotten the message,” Van Hollen said Monday. “If they don’t get the message, and decide to appeal the case, as they did when they lost in Virginia, my colleagues and I will continue our fight to defend the Constitution and protect the people of Wisconsin from this unconstitutional law. ”
MacIver News’ Bill Osmulski reports on some of the fears those experts at the luncheon hold regarding any legal outcome:
Wisconsin Officially Requests to Join Suit Against Obamacare
MacIver News Service | January 19, 2011
[Madison, Wisc…] Wisconsin has officially took the first step to join the multi-state lawsuit alleging parts of the national healthcare bill are unconstitutional.
Iowa, Ohio, Kansas, Wyoming and Maine are also requesting to join the suit, which would bring to 26 the total number of states challenging the law in the United States District Court in Florida.
“The Constitution places limits on the power of the federal government, and these limits must be defended or they will disappear,” said Wisconsin Attorney General J. B. Van Hollen. “Never before has the federal government required an individual to either buy government-approved insurance or pay apenalty. And nowhere does the Constitution authorize Congress to regulate in this manner.”
Van Hollen’s office says the Amended Complaint challenges two main features of the Act: (1) the “individual mandate,” which requires that by 2014 U.S. residents must purchase government approved health insurance or face a tax penalty; and (2) conversion of Medicaid into a federally-imposed universal health care regime.
After the Patient Protection and Affordable Care Act was signed into law last year, 13 Attorneys General filed a lawsuit against the U.S. Department of Health and Human Services, U.S. Department of Treasury and the U.S. Department of Labor alleging the Health Care Reform law signed by the President was unconstitutional.
The amended complaint currently features 20 state plaintiffs; additionally, the National Federation of Independent Business (NFIB) joined the lawsuit as a co-plaintiff on behalf of its members nationwide.
On the day that Scott Walker was sworn in as Wisconsin’s 45th Governor, he granted Attorney General JB Van Hollen the authority to pursue such legal action. Former Governor Jim Doyle had denied Van Hollen’s earlier request to join the suit.
See an earlier interview with Van Hollen regarding Wisconsin’s participation in the lawsuit:
Wisconsin to Fight Costly, Unconstitutional Obamacare
The federal government, as a part of the national health care legislation passed in 2010, is attempting to mandate that every American purchase individual health insurance, or face a penalty.
This is an unprecedented usurpation of states and individual rights for which there is no basis within the Constitution and no precedent in legislative or legal history.
Immediately after the Patient Protection and Affordable Care Act was signed into law, 13 Attorneys General filed a lawsuit against the U.S. Department of Health and Human Services, U.S. Department of Treasury and the U.S. Department of Labor alleging the Health Care Reform law signed by the President was unconstitutional.
The amended complaint currently features 20 state plaintiffs; additionally, the National Federation of Independent Business (NFIB) joined the lawsuit as a co-plaintiff on behalf of its members nationwide.
On the day that Scott Walker was sworn in as Wisconsin’s 45th Governor, he granted Attorney General JB Van Hollen the authority to pursue such legal action.
A citizen’s choice not to purchase health insurance cannot be interpreted as an activity of any kind, much less an activity subject to regulation under the Constitution’s Commerce Clause. The government has no more authority to force you to purchase insurance than it does to purchase a Chevrolet, or a toaster.
Insurance is not pre-paid health care. Insurance is but one of several ways to pay for health care services. It is a contract between two parties that allows the insured save over time with a commensurate promise that the insurance company will, per the contract, pay for covered health care services.
The United States government has no constitutional authority to force all Americans to enter into a contract of this nature with a private entity. The government has no more authority to force you to enter a contract with an insurance company than it does to force you to hire a lawn care service, or to create a will.
The lawsuit, filed in the federal court’s Northern District of Florida on March 23, alleges the new law infringes upon the constitutional rights of Floridians and residents of the other states by mandating all citizens and legal residents have qualifying health care coverage or pay a tax penalty. By imposing such a mandate, the law exceeds the powers of the United States under Article I of the Constitution. Additionally, the tax penalty required under the law constitutes an unlawful direct tax in violation of Article I, sections 2 and 9 of the Constitution.
The lawsuit further claims the health care reform law infringes on the sovereignty of the states and Tenth Amendment to the Constitution by imposing onerous new operating rules that individual states must follow as well as requiring the state to spend billions of additional dollars without providing funds or resources to meet the state’s cost of implementing the law. This burden comes at a time when states across the nation face severe budget cuts to offset shortfalls in an already-strained budget.
Doyle Administration Moves to Accelerate Pace of ObamaCare Implementation Here
MacIver News Service – [Madison, Wisc…] Wisconsin is quickly moving ahead with implementation of a key component of the new national health care reform plan, even though there is no requirement it do so for another three years.
Last year, Governor Jim Doyle (D) announced he would not run for re-election, but he is not letting his lame duck status stop him from moving ahead with the creation of a state-run health insurance exchange.
The recently-passed federal “Patient Protection and Affordable Care Act” requires states to set up insurance exchanges for those who do not have employer-sponsored insurance. The exchanges are not required to be operational until the year 2014, but Wisconsin officials are expending resources and moving ahead with procurement right now and by September will have a vendor in place to design the project.
The exchange implementation is being pursued despite the pending gubernatorial transition, the lack of detailed direction from the federal government, and recent polls indicating a majority of American voters actually favor repealing the controversial new law. In fact, Wisconsin’s Attorney General J.B. Van Hollen wants to join a suit to stop implementation of the Act, permission for which Governor Doyle did not grant.
State officials and policy experts discussed Wisconsin’s efforts at a symposium in the State Capitol Thursday.
Wisconsin Attorney General Seeks Approval to Join Federal Suit Against Health Care Act Doyle Says No, Now up to Legislature
MacIver News Service – Updated 11:40pm Wisconsin Attorney General JB Van Hollen is seeking authority to join the federal lawsuit to block implementation of some aspects of the recently signed health care reform law.
“Based on my preliminary review of the Act, I have concluded that a sufficient legal basis exists to contest the individual mandate to carry health insurance or pay a penalty under the Act.” Van Hollen (R) wrote in a letter to Governor Jim Doyle (D), Senate Majority Leader Russ Decker (D-Wausau), Assembly Speaker Mike Sheridan (D-Janesville) and the minority leaders of the legislature.
In Wisconsin, the Attorney General must receive approval from the Governor or one house of the legislature in order to join a suit against the federal government.
“As the state’s lawyer, I take very seriously my duty to protect our State’s sovereignty,” Van Hollen wrote. “Although several states have initiated legal action and there are likely to be more challenges to the Act made by other states and individual citizens, I believe that Wisconsin must act to protect its sovereign interests and the interests of its citizens of this State by bringing an action to contest the constitutionality of the Act.”
A bipartisan group of 13 attorneys general filed suit on Tuesday, claiming the sweeping reforms violate state government rights granted by the U.S. Constitution. It was filed electronically with a federal court in Pensacola, Florida, according to the office of Florida Attorney General Bill McCollum.
States joining the suit include: Alabama, Colorado, Idaho, Louisiana, Michigan, Nebraska, Pennsylvania, Texas, Utah, Washington, South Carolina, and South Dakota. That suit contends: “The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage.”
See more in our exclusive one-on-on video with Wisconsin Attorney General JB Van Hollen:
