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Fri Dec-25-09 01:44 PM
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Not good news for the RW or anyone counting on mandates being unconstitutional

Federalism is no bar to health care reform

By Robert A. Schapiro

Federalism serves as the latest rallying cry for critics of health care reform. The foes of current legislative proposals charge that Congress is overstepping its bounds and infringing on the prerogatives of the states.

The critics are right that federalism, the allocation of authority among the states and the national government, remains a fundamental principle of our constitutional system. But it is the advocates of reform, not their opponents, who are the true standard bearers of federalism. The health care plans build on the interaction of state and federal power that is central to federalism.

Critics of health care reform brandish federalism as a weapon to undermine democracy, to invite judges to control policy debates. But contrary to their claims, federalism serves to empower citizens, not judges.

The current target of faux federalists is the “individual mandate,” the requirement that all Americans buy health insurance unless they cannot afford it. Friends and foes of health care legislation agree that the mandate is essential to all serious reform proposals. Currently, individuals can avoid paying health care premiums, secure in the knowledge that hospitals — and ultimately the citizens who do buy insurance — will be on the hook for expensive emergency procedures. In this way, taxpayers already provide insurance for people who could, but do not, pay the premiums.

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Even Justice Antonin Scalia, no fan of expansive claims of federal power, voted to affirm Congress’ authority. Justice Scalia explained, “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”

Despite the fact that the case was a dispute over property, the fines themselves, and also the money one is forced to be used to pay for health insurance, and the fact that the plaintiff had chosen trial by jury as the means of dispute resolution, Judge Kathe M. Tuttman dismissed the case upon a Motion filed by Assistant Attorney General Amy Spector. A petition for a Writ of Mandamus, Docket No SJ-2009-0098, to the Massachusetts Supreme Court, ordering Essex Superior Court to vacate this dismissal on procedural grounds, the failure to provide trail by jury in a dispute over property as requested by the plaintiff, was denied. The right to trial by jury in a dispute over property is protected by the 7th Amendment to the US Constitution, Article 15 of the Massachusetts Bill of Rights<61>, as well as Mass. Rules of Civil Procedure 38 and 39<62>. An Appeal was then filed with the Massachusetts Appeal Court and was given Docket No. 2009-P-0526. A later petition for a Writ of Mandamus, Docket No. SJ-2009-0146, with the Massachusetts Supreme Court, ordering the Appeals Court to vacate the dismissal on procedural grounds, as above, and to return the case to Essex Superior Court for trial by jury, was also denied.<63>

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Not good news for the RW or anyone counting on mandates being unconstitutional

Federalism is no bar to health care reform

Kill the bill.