Host: How can states limits the federal government’s power? … the justice department says our best case is the supremacy clause in the Constitution that says no state law should eclipse the federal law. You realize that for instance, Maryland, one of a dozen states, is trying to rewrite the Constitution. How so?

David Rivkin: Well they are seriously considering having a Constitutional Convention, a constitution which, by the way has been amended for a number of times, to see if they can come up with more parliamentary revisions.

The point, Steve, is that it reflects a sentiment we see around the country which says, in addition to passing statutes, it pays from time to time to look at the most fundamental set-up which is the state constitution or the federal constitution and come up with things that really cure the problems that have arisen—including the one you mention which is a lack of balance between federal and state authority.

David, you suggest they change things so that if two thirds of states agree, they can suggest their own amendments to the Constitution, right? How would that work?

Yes, that is correct. In order to get there you would need to have a very targeted state convention or you need Congress to propose that amendment. The idea is to put states on the same level plane as Congress in coming up with specific targeted amendments.

To emphasize, this is very important, if states had this power today, you would put a real check, deterrence if you will, on the political class. I think, for example, Congress would have been less willing to push for unconstitutional health care reform if there was a way the states could come back and revist, for example, the commerce clause. Arizona would’ve been played very differently. It’s really a way of restoring the balance that has been unfortunately lost over the last several decades.

Well, David, what’s the chance that this might actually happen?

I believe it is going to actually happen. Its something that states ought to be taking seriously. This is a cause that everybody who is concerned about expansion of federal power should endorse including the Tea Party movement, independents.

To me this is nothing more than restoring the regional balance between the federal and states governments that the framers had in mind. And very important, it’s not just about states rights, because that word has acquired bad currency in some quarters. It’s about restoring individual liberty. Because remember individual liberty is to be protected by balancing federal and state power, not just from the Bill of Rights.

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Under a storm of controversy and additional “fixes” to healthcare reform, President Obama finally signed the highly contested health care bill into law. At least 14 States have filed suits challenging the constitutionality of the new Health Care Law. Lawyer2Lawyer host, J. Craig Williams, and guest co-host,David E. Frank welcome Lanny J. Davis, partner in the law firm of McDermott Will & Emery LLP and David B. Rivkin, Jr., partner in the Washington office of Baker Hostetler LLP, to talk about these legal challenges to the new law.

Podcast: Play in new window | Download (Duration: 34:42 — 25.9MB)

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Author: Kris Wernowsky
kwernowsky@pnj.com

U.S. Judge Roger Vinson said Wednesday he wants the lawsuit challenging federal health care reform to move quickly.

A preliminary schedule hammered out by U.S. Department of Justice attorneys, representing the United States, and the plaintiffs' attorneys, representing more than 13 states, had the case reaching well into December.

Vinson suggested that with the stakes high, and a $2.5 trillion health care reform law hanging in the balance, resolving the issue in a timely manner is key.

"I would like to remind everyone we're working for the taxpayers," Vinson said. "Including myself."

He made his comments during a scheduling hearing — a routine proceeding in federal civil cases to set filing deadlines for attorneys.

The stage was packed with four attorneys each representing the respective sides. Eighteen attorneys from various states named as plaintiffs in the lawsuit listened in via teleconference.

Fewer than 10 spectators sat in the gallery to get a glimpse of a legal battle that, no matter the outcome, will resonate throughout the nation.

"I am hoping this is resolved and the plaintiffs prevail," said Tim Frey, 53, of Pensacola.

Vinson gave the plaintiffs until May 14 to file an amended complaint since six other states have joined the lawsuit and several changes to the bill took place during the Senate reconciliation process.

The case likely will not contain an evidence discovery phase as the judge, and the attorneys believe that the lawsuit can be settled through previous case law.

The defendants in the case will have until June 16 to file an answer to the complaint and to file its motion to dismiss the case.

Ian Gershengorn, an attorney for the Justice Department's civil division, said the federal government has a "strong basis for a motion to dismiss," and there are a host of jurisdictional issues to be resolved.

The plaintiffs have until Aug. 6 to file a response to the dismissal motion and to file its motion for summary judgment.

Vinson said the first arguments before him will begin at 9 a.m. Sept. 14.

Florida Attorney General Bill McCollum, a Republican candidate for governor, was joined by attorneys general in 13 states in challenging the law. McCollum said Tuesday that six other states are expected to join the legal fight.

The lawsuit claims the legislation is an illegal expansion of Congress' regulation of interstate commerce and unfairly penalizes uninsured people who refuse to buy into the program.

"I can give you a list of more than a half-dozen academics who have said this is a serious claim and Congress does indeed have limits on its authority under the Commerce Clause," said Chief of Staff and Deputy Attorney General, Joe Jacquot.

David Rivkin, a Washington attorney and a former adviser in the Reagan and George H.W. Bush administrations, was retained by the attorneys general. He has long been an outspoken critic of national health care reform and is a regular fixture on cable TV talk shows.

The defense attorneys, critics of the lawsuit, many legal scholars, professors and pundits have said the lawsuit has no chance of success due to the supremacy clause of the U.S. Constitution, which says the federal government supersedes state governments.

"I would not look to law professors necessarily as the best predictors of how litigation will turn out," Rivkin said after the hearing. "That's why they are teaching law, rather than practicing law."

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Paul Gigot: Obamacare may have passed, but the battle is far from over. Led by Bill McCollum of Florida, attorneys general from more than a dozen states have filed suit in federal court, challenging the constitutionality of the healthcare overhaul. Attorney David Rivkin has signed on as outside council to several states that are party to the lawsuit. He joins me now from Washington. David Rivkin, welcome.

David Rivkin: Good to be with you, Paul.

PG: Okay, so the health care bill mandates that all individuals in America will ultimately have to buy a government-sanctioned insurance policy. The states say this is unconstitutional. What’s their argument?

DR: The argument is that this kind of a mandate that is not tied to any economic activity, but imposed on people merely because they exist, exceeds the reach of the commerce clause of our constitution. A broader proposition is that it would violate a key element of our constitutional architecture, namely that the federal government is the government of limited and enumerated powers, that states retain substantial authority, and that this dual sovereignty system is the key way of protecting individual liberty.

PG: Alright, so it infringes fundamentally on state powers. A lot of the people would say ‘Look: The states mandate car insurance; individuals have to buy car insurance if you want to drive.’ How is this mandate different?

DR: The difference is precisely that states have general legislative powers—what is often referred to as police powers. As James Madison said in the Federalist Papers, ‘the powers of the federal government under the constitution are few and finite. The powers of state government are numerous and infinite.’ So the fact that the state governments can do that, whatever its policy merits, has nothing to do with the federal government’s constitutional ability to do it. Second, it’s funny—people often mention the driving example, but remember there’s no constitutional right to drive, so the state imposes this on you as a precondition—

PG: If you want to drive.

DR: If you want to drive, and I don’t mean to nitpick, but it’s only when you drive on public roads. If you have your own ranch and want to drive there, you don’t need a driver’s license and you don’t need insurance.

PG: Has there ever been a case, an example, previously of the federal government mandating, forcing individuals by actually saying ‘you must buy this product.’ Can you recall that?

DR: Never. It never happened in the 200+ years of our republic, and this underscores how revolutionary, unprecedented this is. And the problem here—again, we’re not just talking about some pedantic constitutional principle important to law professors—if the federal government can mandate the purchase of medical insurance merely because doing so would be advantageous to this broad regulatory scheme, there is nothing they cannot mandate. They can, in effect, conscript you to use your hard-earned dollars to purchase a variety of goods, services and commodities.

PG: But here’s the argument that a lot of the supporters make, and that is ‘this mandate is structured as a tax. You pay a penalty if you don’t buy insurance, and a tax under the constitution is surely legal and constitutional. Ever since the 16^th Amendment passed, we can have income taxes, so what’s wrong with this?’

DR: The short answer is, first of all the mandate is separate from the tax, so the taxing mechanism does not redeem the constitutionality of the mandate. Point number two, this is not a true income tax. We would argue that this is a direct tax imposed by the federal government that’s really in the nature of a surcharge and not a true income tax. You mentioned the 16^th Amendment—the 16^th Amendment only allows the federal government to impose taxes on income from whatever source it’s derived. Very important point, that limitations on the federal government’s taxing authority are on the same basis, derived from the same basis as the limitations in the commerce clause, because you don’t want to have a federal government with too large a share of the power. And again, to underscore, it’s not just protecting state sovereignty, it’s protecting individual liberty, because you want to diffuse power—you want to make sure that no governmental institution wields too much power. You know what, progressives and liberals should love this principle. We hear it all the time in the war on terror cases.

PG: Well, I suppose that’s right, but the other argument we often hear is the argument about the constitution’s supremacy clause, which gives Congress the power to pass something and says that the states cannot nullify that legislation. Why, again, is this example different than many other cases that the Supreme Court has decided in favor of Congress?

DR: The answer is very simple. The supremacy clause indeed allows federal legislation to trump both state legislation and even state constitution provided—provided—that the federal government is acting constitutionally. So unconstitutional federal legislation does not trump anything at the state level.

PG: So this will come down to a question about whether or not, in the mind of the justices, this is constitutional. I want to ask you one more question about the politics of this because we know the justices; they care about the law, of course, but they also care about their reputations. Do you really think five justices of the Supreme Court are going to vote to overrule legislation that is so far-reaching, so long-debated—Won’t they fear a political backlash?

DR: I do. I do for a couple of reasons. Call me naïve, but first of all this is so vital to our constitutional architecture. If this law is upheld, it would fundamentally reshape the relationship between individuals and the government, between states and the federal government, in ways that are unprecedented in 200+ years. But that’s my idealistic side. My pragmatic side says this: If you look at the relevant case law, Justice Kennedy—who will be the leading justice, the swing vote here—in several cases, including the very famous case in 1995 called Lopez, wrote very eloquently about the importance of preserving the dual sovereignty system and how an overly broad commerce clause would absolutely swamp it, and he wrote a beautiful opinion.

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Rivkin transcript from PBS NewsHour

Airdate: Thursday, April 1, 2010

Host: You believe it’s unconstitutional to require people to buy insurance. Why?

David Rivkin: It’s unconstitutional both as a matter of fundamental principle and relevant case law. The key aspect of our constitutional architecture is that the federal government is a government of limited and enumerated powers. The point was made by James Madison in Federalist Papers which said that the powers of federal government are few and well-defined, the powers retained by the states are numerous and indefinite.

If you have an infinitely broad commerce clause, under which Congress can legislate, it would absolutely eviscerate state authority to have any independent regulation.

There are very recent cases, 5-4 decisions, including [United States vs] Lopez, which struck down the gun free school zone act and [U.S. v.] Morrison, which struck down key portions of violence against women act, that say very clearly …. there have to be meaningful limitations on the scope of commerce clause otherwise it would swallow the rest of the Constitution …this [health care reform] doesn’t relate to economic activities, it compels people to engage in behavior they do not desire.

Rivkin: Two points: Nobody disputes that Congress can regulate the market, the business of buying insurance, the terms of insurance, the conditions of insurance. What we’re talking about here, though, is compelling people to purchase something they do not desire merely because there’s an economic footprint.

Let me reiterate the point powerfully articulated by Justice Kennedy, who is likely to be the swing justice here: There have to be meaningful limitations under the commerce clause. If you say as my colleague General Cordray says that a failure to purchase insurance has an economic impact, there is literally no activity known to man that would not have some economic impact and its aggregate would impact interstate commerce.

Host: You’re saying it boils down at least in part to whether this is an economic activity?

Rivkin: As distinct from something that has an impact.

Rivkin: In Gonzalez v.Raich , the activity involved growing marijuana at home in a bathtub for personal consumption had no profit motive, but it was the same activity as growing marijuana in parks and selling it … Where General Cordroy is wrong—before you aggregate the impact, it has to be an economic activity. Not necessarily one of a profit motive, but an economic activity. What he does is read out of existence Lopez and Morrison, which are ‘95 and 2000 cases where the courts said very clearly there have to be meaningful limitations.

Host:  Let me ask you about the other argument: That it is unconstitutional to require states to set up insurance exchanges for people who don’t have insurance. Can you briefly explain to us why?

Rivkin: There is a whole line of cases that is basically rooted in the 10^th amendment that talks about states retaining viable independent authority.

New York v. United States, the case is called Prince. You cannot co-opt states, you cannot commandeer which is a term of our state officials …  that is well-established…

This statue will compel Florida and other states to spend billions of dollars of their limited resources, taking them away from environmental protection, taking them away from schools. Even if you didn’t have a mandate, that part of the statute alone is clearly unconstitutional.

Rivkin: Very important to underscore, Medicaid began as a voluntary effort. We would argue that you cannot opt out of Medicaid, it is not a viable choice for any responsible government, it would absolutely destroy infrastructure …

Host: But that’s not a change in this law-

They’re changing Medicaid in a way that would swamp Medicaid roles, costing billions in state revenue, and remember states cannot print money like the federal government. Having the states hire thousands of people to administer; large chunks of this whole regulatory edifice cannot be opted out of.

Host: Finally, what one hears about many of the legal opponents is that truly what this is all about is an opposition to health care reform and this is another way of trying to undermine it…

Rivkin: This is unfortunate. There are many worthwhile policy causes including carrying guns in your schools, after 9-11 increasing our ability to surveil the enemy.

No matter how meritorious your policy goals are, you have to do it in a way that is consistent with our constitutional architecture. This is the American way.

I frankly don’t understand the argument that because health care reform is a good thing, which I would stipulate, that challenging it somehow is wrong. These are serious arguments.

Host: You just said you believe health care reform is a good thing

Of course, it’s the question of how it’s being done. The Washington Post editorial page said it is a serious lawsuit, it has merit, it ought to be seriously considered.

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(Source: ABCNews.com. By ARIANE de VOGUE and DEVIN DWYER)

At least 14 states challenge constitutionality of health care law.

The ink on President Obama's signature was barely dry when attorneys general in 14 states filed papers in federal court today challenging the constitutionality of the newly signed health care bill.

"We are convinced that this legislation is fundamentally flawed as a matter of constitutional law, that it exceeds the scope of proper constitutional authority of the federal government and tramples upon the rights and prerogatives of states and their citizens," David Rivkin, Jr., an attorney representing 13 of the states, told ABC News.

The challenges to the legislation focus on the mandate that requires an individual to buy health insurance. The states are also worried about the extent to which the statute imposes a financial burden -- in resources and personnel -- on them.

Florida Attorney General Bill McCollum is leading the attack for 13 of the states and filed papers in the Northern District of Florida shortly after noon today.

More states are expected to file in the days and weeks to come.

"We simply cannot afford the things that are in this bill that we're mandated to do," McCollum, who is running for governor of Florida, said at a press conference this afternoon. "It's not realistic. It's not hype, it's just very, very wrong."

McCollum said he's confident the case will go before the U.S. Supreme Court and that the states will prevail.

"There's no provision in the Constitution that allows for anybody to be forced to do something when there's no commerce, no action, you're just sitting there," McCollum said of the insurance mandate. "And [the lawsuit] is about the question of forcing the state of Florida and other states, against the sovereignty that's guaranteed in the Constitution to our states, to do things that are practically impossible to do."

Attorneys general from South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho and South Dakota joined Florida in the suit.

Virginia filed a separate suit in federal court in Richmond because it has a state statute on the books worded specifically to block such a mandate.

"It really is nothing more than a wholesale takeover of large portions of state institutions and programs," said Rivkin.

Some legal experts believe the legislation will initially survive constitutional challenges, because there is a long line of precedent dating back to the New Deal allowing Congress to regulate economic activity.

"Congress has the power to require the individual mandate under the commerce clause," said Yale Law professor Jack Balkin, who runs the popular legal Web site Balkinization. "That is because Congress can regulate economic activities that have a cumulative economic effect on interstate commerce."

On "Good Morning America," senior White House adviser David Axelrod said he's confident the law will withstand legal challenges. "It was crafted in a way to do so," he said. "We're not concerned about these lawsuits."

House Speaker Nancy Pelosi, D-Calif., told ABC News' Diane Sawyer yesterday that "the Congress legislates, the White House -- the executive branch enforces and the Supreme Court, the judiciary, interprets. We feel very confident about our legislation."

State Legislatures to Challenge Health Care Law

In addition to constitutional challenges to the law, legislators in at least 36 states are attempting to limit, alter or oppose some of its provisions through state constitutional amendments or laws, according to the National Conference of State Legislatures.

Many of the proposals seek to keep health insurance coverage optional for individuals and exempt employers from penalties if they don't offer coverage for workers.

Earlier this month, Virginia and Idaho became the first states to enact laws specifically stating that health insurance coverage is not required.

Still, many legal experts say these legislative efforts will ultimately be trumped by the so-called supremacy clause in the U.S. Constitution, which says federal laws "shall be the supreme law of the land."

"State law cannot nullify federal law," Timothy Stoltzfus Jost, a health law expert at Washington and Lee University School of Law, writes in the New England Journal of Medicine. "This principle is simply beyond debate, and state legislators, many of them lawyers, know that. The purpose of these laws, therefore, is not legal but rather political

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