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Ellen Belcher is the Dayton Daily News opinion pages editor. She writes about state government, education, the environment, higher education and all things Dayton.
Martin Gottlieb is an editorial writer and columnist for the Dayton Daily News opinion pages. He focuses on the political process itself and does such national issues as war, the economy, taxes and Social Security, as well as a hodge-podge of local and state issues.Home > Blogs > A Matter of Opinion > Archives > 2010 > April > 01 > Entry
Mike DeWine: Unconstitutional law must be blocked
(Cedarville’s Mike DeWine, writer of this piece, a Republican, is running for Ohio attorney general.)
The attorneys general of 13 states are right to file lawsuits to block President Barack Obama’s health care law. Ohio Attorney General Richard Cordray is wrong to refuse to join them.
The legislation is riddled with flaws; it will impose costs we cannot afford; it was jammed down the throats of an unsupportive American people.
The attorney general of Ohio took an oath to support and defend the constitutions of the state of Ohio and the United States. The law is unconstitutional. Defending that oath requires active efforts to block Congress’ infringement upon the rights of citizens.
Ours is a national government of defined and limited powers. It has been a bedrock principle of American law that the only powers that Congress possesses are those outlined in the Constitution. For a law to pass constitutional muster, there must be some provision in the Constitution giving Congress the power to act.
Our Founding Fathers understood that such limitations on the powers of Congress are necessary to protect individual liberties and the independence of state governments.
A core component of the legislation requires all citizens, individually or through your employers, to purchase a health care policy that the government deems appropriate. Failure to comply will subject you to potential penalties, including a fine totaling up to 2.5 percent of household income.
This “individual mandate” represents an unprecedented expansion of federal power at the expense of individual liberties. Never before has the federal government forced citizens to purchase a product or service just for being a citizen.
Proponents of the law claim that the “commerce clause” of the Constitution, which allows Congress “to regulate commerce with foreign nations, and among several states, and with the Indian tribes,” somehow authorizes this individual mandate. Such an argument stretches the Constitution in ways that our Founding Fathers would have found deeply disturbing.
While the Supreme Court has shown deference to Congress in defining the limitations of the commerce clause, the court has, as a minimum, limited Congress’ commerce powers to matters somehow involving commerce.
Under well-established precedent, Congress may regulate under the commerce clause the channels and instrumentalities of commerce and activities that substantially affect commerce. In the case of the new law, however, Congress is seeking to regulate people who are not involved in commerce at all — but those who choose not to purchase health insurance.
How can a person’s choice to not purchase something be considered commerce?
The Supreme Court in recent years has made clear that there are limits on Congress’ powers under the commerce clause. The court has invalidated a law that sought to regulate gun possession near schools and a law that provided civil remedies for victims of gender-related crimes.
It is sad that we are at this point when lawsuits are necessary to protect our individual liberties and constitutional principles. In the 12 years I spent in the U.S. Senate, I never saw the reconciliation process used to pass such significant social legislation.
The majority of Americans opposed the bill. It didn’t get a single vote from the minority party in the House or the Senate, and, quite simply, it would not have passed under normal legislative channels. Such partisan maneuverings are a blatant disregard for the will of the American people.
Fortunately, when a law that is passed exceeds the power of Congress, there is one final check and balance.
Federal courts are not roving policy-making bodies, and they should not assess the misguided policy judgments of the health care bill. As Marbury v. Madison reminds us, however, courts are duty-bound to say what the law is as set forth in the Constitution:
They must not ignore the checks and balances and limitations on power that our national charter explicitly establishes.
The lawsuit initiated by the 13 state attorneys general is our last, best chance to protect the American people from this unconstitutional legislation. It is time for Attorney General Cordray to show leadership and join with his fellow attorneys general in seeking to block this unconstitutional takeover of our health care system.
If he doesn’t act, I will file suit on my first day in office.
Permalink | Comments (11) | Post your comment | Categories: Guest Columns, Health Care, National government, Ohio politics
Comments
By atephe
April 2, 2010 12:10 AM | Link to this
mike dewine is a fool. lets pray he doenst get reelcted to serve in Ohio. what a fool
By Bill
April 2, 2010 8:20 AM | Link to this
This is why Dewine is no longer in Congress. He doesn’t know enough to be elected. This bill may not be perfect but will pass muster. Why waste Ohio’s money. And the GOP whines about frivolous lawsuits.
By Squirrellygirl
April 2, 2010 8:42 AM | Link to this
Only socialists don’t want this unconstitutional bill challenged. We have socialists in power right now and they need to be voted out of office. I agree with Dewine. Federal Govt is usurping authority over states where it has none. This is the same Supreme Court that Obama insulted, and I hope they return a fair verdict.
By Craig
April 2, 2010 11:13 AM | Link to this
Socialist? What a cop out. Schools and the VA are socialist programs too. It’s a shame that uneducated people are throwing around a term they don’t even understand. Dewine is a hypocrite. Republicans accepted good insurance for years and now doesn’t want the little people to have the crumbs. Also, I thought Republicans were against frivolous lawsuits. Oh, they are. When it suits their interests.
By Cris
April 2, 2010 12:11 PM | Link to this
The individual mandate argument must be pursued in an INDIVIDUAL lawsuit, not by a state AG. The argument for a lawsuit by the state AG is the unfunded mandates on the State Govt in the bill. The State of Ohio does not have standing for a lawsuit about the Individual Mandate with Tax Penalty, because the State will not be harmed by that policy. Only once an Individual has been shown to be harmed by the individual mandate will a lawsuit — from an individual, probably as a class action — survive Standing. A lawsuit by the State AG on behalf of the interests of the State of Ohio could challenge one or more requirements in the bill to cause the state to do A, B, and/or C. If the funds to perform those actions were not provided at all or insufficiently provided for, that is an Unfunded Mandate. The lawsuit would cite the Brady Bill case as precedent. There was a case, I think from North or South Dakota, from a local sheriff. The requirement for Background Checks was found unconstitutional because the Brady Bill did not provide funds to implement the requirement; therefore, it could not be required. That should be the basis for a State lawsuit, imho.
By mlh
April 2, 2010 12:54 PM | Link to this
I am happy that DeWine was not in Washington to add to this Republican resistance. Boehner was bad enough.
By RWE
April 3, 2010 8:01 AM | Link to this
DeWine tells people what they want to hear and will do something else. Had he been in congress when the health debate was going on, he would have been a central figure in forming ‘a gang of #(place number here)’ to appease the left. We are better off without him.
By Wild Bill
April 5, 2010 1:03 AM | Link to this
Health Care for everyone or… Control of Everyones Healthcare. Our politicians continually offer us children “candy” but it is a ploy for a bigger more invasive government. To many people buy into the fantasy that the government will take care of them! What a joke.
By r
April 6, 2010 10:48 PM | Link to this
who would believe a thing DeWine has to say…..MIke just go away………..
By fortressdayton
April 7, 2010 5:00 PM | Link to this
Do not complain about ‘socialism’ if you now or in the future will accept SSA payments. Why isn’t DeWine challenging the fed income tax? I don’t like the health care plan either, but the whining has to stop. I suggest letting folks opt out (with no penalties), but then they may not receive free or subsidized treatment (i.e ER visits) at any medical facility at any time. Fair enough? You can die proud if you are poor. That’s the risk I take everyday as a self-employed single parent.
By ray
April 8, 2010 6:56 AM | Link to this
can you spell p-a-n-d-e-r?