Reviving states' rights to kill Obamacare will fail

May 28, 2010|By ALLAN POWELL

It didn't take very long for the angry opponents of the newly passed health care law to strike back. Fourteen states have filed lawsuits to nullify this fiercely contested piece of legislation.

If there was any doubt about their zeal to wreck Obamacare, that doubt might be removed. When the attorney general of Alabama advised the governor that the case was unwinnable, the governor hired a lawyer to file the suit.

The arguments against the new health care law are based upon two points - a state does not need to obey a law it finds abusive (Virginia) and the law is not supported by Article I of the Constitution. It is safe to say that post-signing opinion is largely negative about the probability of success in the courts.

The attempt to revive interest in the old states' rights view of our federal system will, no doubt, fall short of the mark. This is because there is likely to be a repeat of earlier patterns of acceptance of great social innovations - they grow in favor with the public.


The old states' rights debates were extreme and divisive and are now in the dust bin of history - tragically requiring a civil war to lay to rest.

One hardly remembers the debates of 1830, when Robert Hayne of South Carolina clashed openly with Daniel Webster of Massachusetts over the relationship of states to our national government. These debates reflected the regional interests that pitted North against South in a contest over tariffs. Higher tariffs favored the manufacturing interests of northern states, while lower tariffs were beneficial to the agrarian southern states.

Southern legislators complained that the latest tariff (1828) was oppressive and unjust and that, if necessary, they could "interpose" their will as a sovereign state and nullify a federal law harmful to their interests. Hayne went so far as to assert that "the very life of our system is the independence of states, and that there is no evil more to be deprecated than the consolidation of this government."

In a terse reply, Webster said, "The states are sovereign only so far as their power is not qualified by the Constitution. Only the Constitution and the national government are sovereign over the people." The Virginia version of this suit is a repudiation of the arguments of Webster and he is likely to prevail in this contest of the proper meaning of federalism.

Is it conceivable that, if these suits reach the Supreme Court, the five most conservative justices would again make a purely political decision in favor of a new version of states' rights? They did so in Gore v. Bush in a different context and have never hinted that it was a mistake.

There is also little comfort in the hope that Article I of the Constitution will provide support for the plaintiffs. The Prologue states that the founders wanted the new government to "promote the general welfare" of "the people." Article I provides that Congress shall "lay taxes," "provide for the general welfare," "regulate commerce with foreign Nations and among the several States" and "make all laws which shall be necessary and proper for carrying into execution the foregoing powers."

Jonathan Turley, a very visible and credible professor of constitutional law, gives the pointed opinion: "If you was (sic) taking odds in Vegas, you'd have to give Congress the edge." A New York Times editorial about this issue asserts, "It seems a long shot that the Supreme Court would invalidate the mandate, if the cases ever reach that level." While it is true that Vegas is a gamble, the present Supreme Court is predictable in seeing law through Republican eyes.

Those who are opposed to any national health plan have put forward every conceivable objection possible to nullify the law. The claim that we were in too big of a hurry is strange when it is remembered how long and torturous the attempt has been.

Another argument put forward was that we cannot afford the plan. If we continue engaging in wars of choice that drain our financial resources, our infrastructure will always be in disrepair and the health of a very large portion of our population will be at risk.

This truly historic reform should be supported and improved despite the objections of several states in the name of "states' rights." The real objection to health care for the needy is a lack of charity on the part of those who are fortunate to have a plan of their own. This was the case with regard to Social Security when it was proposed and it will remain so in any future reform proposals. Nonetheless, we can never relinquish the responsibility for the "general welfare" of this country.

Allan Powell is a professor emeritus of philosophy at Hagerstown Community College

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