Missouri
Attorney General Chris Koster filed an unorthodox and highly
nuanced legal brief in the lawsuit against the national health-care
law. It argued both sides of the legal issue.
At one
point, Koster argued that Congress exceeded its previously
recognized power under the U.S. Constitution’s Commerce Clause when
it passed the mandate requiring everyone to buy health
insurance.
At another
point, Koster said that the court still might approve the
health-care mandate under the Commerce Clause, if it made clear
that health care was the only arena where Congress could go that
far.
At still
another point, Koster said that the health-care mandate might be
constitutional under Congress’ taxing power.
Despite
fancy legal footwork, legal experts were unimpressed by the
friend-of-the-court brief filed this week in a Florida case before
the 11th U.S. Circuit Court of Appeals.
“It
appears that the attorney general is trying to split the baby with
this amicus brief, hoping to satisfy those who demanded that he
take a position against the Patient Protection and Affordable Care
Act’s constitutionality while also signaling his support for the
underlying policy,” said Dave Roland, director of litigation for
the libertarian Freedom Center of Missouri, in an email.
“The brief
looks like an adept political maneuver, allowing the attorney
general to claim to have opposed the Affordable Care Act while
signaling to health-care law’s supporters that he is really on
their side.”
Bruce La
Pierre, a constitutional law expert at Washington University Law
School described Koster’s argument as “simplistic, to be
kind.”
The simple
answer to the health-care law, wrote La Pierre in an email, is to
“leave it all to the political process. Why are political
conservatives suddenly so enamored with judicial activism and
striking down the results of the democratic political
process?”
Koster
argued that the Supreme Court never has upheld as broad a reach of
the Commerce power as the one required to uphold the health-care
law. The court would have to go further even than it did during the
New Deal. In the leading New Deal precedent, the court ruled that
the government could order an Ohio farmer not to plant wheat for
home consumption on half of his 23-acre plot of land. Even that
small amount of wheat would affect the stream of commerce, the
court ruled.
After
arguing for many pages that the law exceeds the Commerce Clause,
Koster switched field to suggest that the court could use the
Commerce Clause to approve the health-care mandate if it only did
it this once. “A bright-line exception could be constructed to
aggressively limit this court’s decision solely to the health-care
arena,” he writes.
Carving
out this single arena could be supported because “the congressional
regulation is in the area of health care, in which nearly all
individuals are certain to enter interstate commerce because of the
need for medical treatment at some point in their life.”
This
echoes the arguments of the law’s supporters.
Koster had
another suggestion for how the court might uphold the law. He
argued that the law could be justified under the legislature’s
power to tax, which is almost unlimited. He pointed out that the
mandate is part of the Internal Revenue Code, making it a tax
provision.
Koster
noted that Missouri voters overwhelmingly approve Proposition C in
2010 barring enforcement of an individual health care mandate in
the state.
But La
Pierre pointed out that a Missouri law in conflict with a valid
federal law must fall. “Missouri’s law in conflict with ACA?” he
wrote. “Yes, and if ACA is constitutional, then Missouri’s law is
invalid under the Supremacy Clause. It is preempted. Missouri’s law
is irrelevant to the determination of the validity of the
ACA.”
“font-family: Verdana;”>U.S. “font-family: Verdana;”>Rep. Wm. Lacy Clay issued a statement about Koster’s action, saying that he “
“mso-bidi-font-weight: bold;”>has chosen to sacrifice affordable and accessible healthcare for all Missourians in exchange for political expediency.”
“font-family: Verdana; mso-bidi-font-weight: bold;”>Clay said Koster did not offer solutions to correcting the actions of insurance companies that “gouge consumers” and exclude those with pre-existing conditions.
“font-family: Verdana; mso-bidi-font-weight: bold;”>A year before Koster was elected as attorney general, the former state senator left the Republican Party to become a Democrat.
“font-family: Verdana; mso-bidi-font-weight: bold;”>“The Attorney General should remember Harry Truman’s advice about Democrats who sometimes act like Republicans,” Clay said. “The former president was fond of saying, “If you give the voters a choice between an imitation Republican and the genuine article, they will choose the real one every time.”
“mso-bidi-font-style: normal;”>
“font-family: Verdana;”>Edited with permission by www.stlbeacon.org
