Pubdate: Thu, 18 Mar 2010
Source: St. Paul Pioneer Press (MN)
Copyright: 2010 St. Paul Pioneer Press
Contact:  http://www.twincities.com/
Details: http://www.mapinc.org/media/379
Author: Jason Hoppin
Bookmark: http://www.mapinc.org/people/Angel+Raich

MINNESOTA HEALTH REFORM FOES URGE STATE LAWSUIT

Requirement That Citizens Buy Insurance Is Unconstitutional, They Say

Republicans in Minnesota want Attorney General Lori Swanson to file a 
lawsuit blocking federal health care reforms, citing the U.S. 
Constitution's Commerce Clause and 10th Amendment.

Standing in their way, though, might be a pot-smoking medical 
marijuana advocate from California named Angel Raich.

During a Capitol news conference Wednesday, prominent Republicans 
said they will introduce a resolution on the Senate floor today 
asking the Minnesota delegation to vote against the bill and seeking 
a lawsuit to block it if Congress passes it. In doing so, they raise 
an issue that has reverberated from tea party rallies to statehouses 
across the country -- that the federal health care bill is unconstitutional.

On Wednesday, Idaho's governor became the first to sign a measure 
requiring the state attorney general to sue the federal government if 
residents are forced to buy health insurance. Similar legislation is 
pending in 37 other states.

Minnesota Sen. Julianne Ortman, R-Chanhassen, cited a provision in 
the proposal requiring people to carry health care coverage, saying 
the federal government has never required anyone to purchase goods or 
services.  She compared it to forcing people to buy a car in order to 
prop up the sluggish auto industry.

"People might choose not to buy a Chevrolet, or they might choose not 
to buy a car at all. That is the quintessential comparison here. It's 
forcing people into commerce when they don't want to be in commerce, 
and that's why it's unconstitutional under the Commerce Clause," Ortman said.

Ortman's complaint, along with a strongly worded letter to the 
state's congressional delegation sent Wednesday by Rep. Tom Emmer, a 
Republican gubernatorial candidate from Delano, echoed some of the 
rhetoric in the broad national debate over health care reform.

So did the Democratic response.

"Once again, the party of 'no' needs to be dragged kicking and 
screaming down the road to real health care reform that will make a 
difference in the lives of Minnesotans," Sen. Linda Berglin, 
DFL-Minneapolis, said. "Recognizing that their delay and scare 
tactics have not resonated with the public, they are resorting to old 
and discredited arguments, saying that the federal health care reform 
bill is unconstitutional."

The argument is not entirely discredited. Even the nonpartisan 
Congressional Research Service questioned the mandate in a report last year.

"Whether such a requirement would be constitutional under the 
Commerce Clause is perhaps the most challenging question posed by 
such a proposal, as it is a novel issue whether Congress may use this 
clause to require an individual to purchase a good or a service," 
wrote the group, which advises members of Congress.

But many legal experts say it's a long shot. And marijuana has a lot 
to do with why.

The Commerce Clause allows the federal government to pass laws 
relating to interstate commerce and, since the Great Depression, has 
become a way for Congress to pass bills on any number of subjects, 
including violence against women and gun prohibitions.

But over the past 15 years, the Supreme Court has been more receptive 
to striking down federal laws as having no relation -- or merely an 
attenuated connection -- to commerce, including the Violence Against 
Women Act and Gun-Free School Zones Act.

Angel Raich may have put a stop to that trend.

Raich suffers from a variety of ailments, and she grew and smoked her 
own marijuana to alleviate some of her discomfort -- a practice 
California allows under its medical marijuana laws.

But drugs remain illegal under federal law, and Raich sued, alleging 
that those laws violate the Commerce Clause and the 10th Amendment. 
Because her pot was never bought or sold, Raich argued, she didn't 
participate in commerce, and the Commerce Clause didn't apply to her 
or others growing marijuana for themselves.

The Supreme Court didn't buy her argument, ruling that staying out of 
the marijuana market rather than participating in it does affect 
commerce (even if the market is illegal). Conservative Justice 
Clarence Thomas and then-Chief Justice William Rehnquist sided with 
Raich, but the court's liberal wing prevailed, even winning over 
conservative Justice Antonin Scalia.

"Raich seemed to stem the Rehnquist court's rollback of Congress' 
Commerce Clause power. And Justice Scalia went along with that, using 
reasoning that arguably expands Congress' reach," said Mehmet 
Konar-Steenberg, an associate professor at William Mitchell College 
of the Law. "So I don't know how much stomach there is at the Supreme 
Court right now to try to revive this line of cases."

Furthermore, the links between health care and commerce are clearer, 
Konar-Steenberg said, pointing out -- as others have -- that many 
already purchase insurance and that those who don't have their 
emergency room bills picked up by everyone else. "These don't strike 
me as attenuated links to interstate commerce," Konar-Steenberg said.

There are a few narrow exceptions to the health care bill's so-called 
individual mandate, including one allowing people to opt out on 
religious grounds. Those who cannot afford private insurance would 
receive government subsidies to help pay for it.

A spokesman for Attorney General Lori Swanson, a Democrat, had no 
comment on the Republican request to file a suit.
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MAP posted-by: Richard Lake