- The Washington Times - Monday, March 29, 2010

Now that Vice President Joseph R. Biden Jr. has dispensed with colorful metaphors, and House Speaker Nancy Pelosi has removed her perma-smile, bureaucrats in Washington are busily preparing the necessary channels to begin communicating details of the massive bill to the states. And so a new chapter begins in this epic saga, but one President Obama and his team will not want to read.

As governors begin to sort through the murky details, they’re quickly realizing this albatross is worse than originally feared. Faced with higher taxes for small businesses to support Medicare rates, ballooning Medicaid burdens, mandatory requirements for every denizen, not to mention the fear that many companies will simply jettison their own health plans in lieu of the promise of something better - the wages of this federal sin will only worsen. So much for the Democratic argument that once the bill becomes law, the American people will see the light and be healed!

Less than a week after penning his signature, the president is now threatened with lawsuits from more than a dozen states charged with implementing the new law.On Thursday, Georgia Republicans led by Lt. Gov. Casey Cagle called on the state Attorney General Thurbert Baker, a Democrat, to do the right thing and sue the administration for imposing such a massive unfunded mandate on the Peach State.

“In addition to the questionable constitutionality of the bill, the unfunded mandates in the health care reform will cripple Georgia’s economic recovery,” said Mr. Cagle. “Unlike Washington, our state constitution requires us to balance the budget each year.”

The constitutionality of health care reform revolves around the interpretation of the 10th Amendment and the Commerce Clause. The Tenth Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

There is nothing in the constitution that gives the government the right to tell people what goods and services they should purchase. Proponents of health care reform argue that the Commerce Clause conveys this right to the government. It states “[The Congress shall have power] to regulate Commerce with foreign Nations, and among the several States … .”

Without dismissing the complex legal arguments of the expansive Commerce Clause, the mandate on individuals to purchase insurance is clearly at odds with the 10th Amendment. Never before has the U.S. government required individuals to purchase a product or service unless they were doing so to participate in a public privilege, such as driving on a government road. Clearly, the 10th Amendment was enacted with intent of limiting what the government could force U.S. citizens to do.

If the government can force citizens to buy health insurance, can it next mandate Americans to purchase General Motors cars? Organic foods? American-made TV sets?

Without mandated insurance for every American, health care insurance reform collapses. The young, the healthy and the optimistic will choose not to pay the high premiums required by community ratings (as opposed to actuarial calculations). They will only purchase health care insurance when they become sick or transition into a higher-risk classification. That will further increase premiums.

Proponents of the federal measure, and several constitutional scholars, argue this small but vocal faction doesn’t have a constitutional leg to stand on.

Mr. Baker indicated as much when he told the Associated Press, “This was not a very tough legal question.”

Personally, I would take the constitutional issues seriously. I think the Supremacy and Commerce clauses of the Constitution and the Ninth Amendment are clearly in play. Both sides have a reasonable argument, depending on whether the Supreme Court takes a strict or expansive interpretation of the Constitution.

More importantly, however, the actions of the states speak to a larger political dilemma for the Obama administration and any future initiatives it pursues. You can’t keep jamming unwanted and unpopular national measures through Congress, hoping it’ll get sorted out later. The White House is slated next to consider reauthorizing federal education programs. Does it honestly believe states should sit this one out, let alone acquiesce on that important 10th Amendment prerogative?

There’s an interesting subtext to the Georgia lieutenant governor’s argument. In the Democrats’ blind zeal to pass their leftist policies, they are by default writing checks they know they can’t cash. That massive bout of irresponsibility doesn’t just end with aimless numbers on a congressional budget page. Contrary to what the president and party Democrats believe, our nation’s debt is “not all on paper,” nor are new programs easily paid for because “A billion dollars today is a mere rounding error!”…

Every statewide elected official like Mr. Cagle, Republican and Democrat alike, woke up last Monday morning with the stark realization that they now have to pay for the mess Congress has created. And I guarantee you every one of them began the thought process with similar words, “Unlike Washington, we have to balance our budgets … . What are we going to do?”

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