When reactionary conservatives oppose health care reform and cry "Tenth Amendment...Tenth Amendment...Tenth Amendment..." or "states' rights...states' rights...states' rights..." I suspect 99.9% of them don't understand they're using a long discredited doctrine that "posits that the effect of Supreme Court decisions or other 'encroachment' by the federal government may validly be blocked by the 'interposition' of a viable state right." I further doubt their favorite talk radio hatemonger has explained it to them! Interposition has "no tangible support in modern American law."
In the 1950s and 1960s, interposition was used by racist, conservative southern politicians as a legal justification for blocking federal civil rights initiatives and Supreme Court decisions related to civil rights. The most stark and disturbing images of racist, conservative southern politicians attempting to use this discredited doctrine are those showing George Wallace blocking a school house door to prevent the entry of black students. Today, the same type of reactionary conservatives are attempting to block access to health care for millions of Americans who currently have no health care.
Regarding chances of killing health care reform by the discredited doctrine of interposition, I suspect the chances are very slim. Why? For one, as the sources state, the United States Supreme Court has NEVER ruled the interposition doctrine is valid or permissible. All the justices, including the conservative justices, understand that permitting the use of interposition would destroy the authority of the Court and undermine Marbury v. Madison. This is why lawsuits, filed by reactionary Attorneys General, will fail.
Let's examine three of the arguments used by reactionary conservative opponents of health care reform. I'll use excerpts from the sources that refute the claims.
Claim 1: "Congress is infringing on the power of the states." (Here, again, we see the discredited doctrine of interposition.) It's amusing to watch health care reform opponents use the federalism argument. In reality, those who supported health care reform are the true supporters of federalism because we understand the importance of, as one source describes it (see Shapiro), "The health care plans build on the interaction of state and federal power that is central to federalism." Shapiro further states, "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."
Claim 2: "It's unconstitutional."
Wrong!
The Constitution gives Congress the authority "'lay and collect taxes" and "regulate commerce among the several states." I doubt any right wing hate radio host understands the concept of "substantial effect." As noted in the sources I cite below, "substantial effect" is a concept related to activities that have, for example, a tremendous impact on the economy. Without doubt, health care does have a "substantial effect" on the U.S. economy and therein is the problem for opponents of health care reform because, for decades, the Supreme Court has ruled that activities which have a "substantial effect" can be regulated.
Claim 2: "Mandating the purchase of health care, or be fined, is unconstitutional."
During the health care debate, Ken Klukowski wrote an article, published at POLITICO, in which he argued against the health care mandate. In the article, he stated, "people who declined to purchase government-mandated insurance would not be engaging in commercial activity, so there’s no interstate commerce."
As noted in the sources, Klukowski's argument has serious flaws.
"The court has said that Congress can use its commerce power to forbid hotels and restaurants from discriminating based on race, even though their conduct was refusing to engage in commercial activity. Likewise, the court has said that Congress can regulate the growing of marijuana for personal medicinal use, even if the person being punished never engaged in any commercial activity. "Under an unbroken line of precedents stretching back 70 years, Congress has the power to regulate activities that, taken cumulatively, have a substantial effect on interstate commerce. People
not purchasing health insurance unquestionably has this effect."
"Congress also could justify this as an exercise of its taxing and spending power. Congress can require the purchase of health insurance and then tax those who do not do so in order to pay their costs to the system. This is similar to Social Security taxes, which everyone pays to cover the costs of the Social Security system. Since the 1930s, the Supreme Court has accorded Congress broad powers to tax and spend for the general welfare and has left it to Congress to determine this."
Claim 3: "Forcing Americans to purchase health insurance violates individual liberty."
Reactionary conservatives become extreme hypocrites when they attempt to use this argument because they're the same reactionaries who oppose liberty for women in making reproductive choices and they oppose equality and liberty for gays and lesbians. However, to address their flawed claim as cited above:
"Nor is there any basis for arguing that an insurance requirement violates individual liberties. No constitutionally protected freedom is infringed. There is no right to not have insurance. Most states now require automobile insurance as a condition for driving.
"Since the 19th century, the Supreme Court has consistently held that a tax cannot be challenged as an impermissible take of private property for public use without just compensation. All taxes are a taking of private property for public use, but no tax has ever been invalidated on that basis."
"Those who object to the health care proposals on constitutional grounds are making an argument that has no basis in the law."
In summary, reactionary conservatives have no legal footing on which to base their claims that Congress has no authority to enact health care reform or that the individual mandate is unconstitutional. The Commerce Clause gives Congress broad authority, especially in matters that have a "substantial effect" on the economy. Congress has the authority to levy taxes, and there no valid argument against a mandate requiring Americans to purchase health insurance. Finally, the use of the discredited doctrine of interposition, used in 1950s and 1960s by conservative, southern racists, is an indication of how desperate and low conservatives have sunk into the abyss of reactionary politics.
http://www.acslaw.org/node/15619
http://www.politico.com/news/stories/1009/28620.html
http://www.acslaw.org/files/Lazarus%20Issue%20Brief%20Final.pdf
http://www.ajc.com/opinion/federalism-is-no-bar-182808.html
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