Jim Huffman: Oregon AG wrong on Constitution

Kroger Wrong on Constitution, Huffman Says
Huffman for US Senate Press Release

Jim Huffman, candidate for the U.S. Senate and professor of constitutional law at Lewis & Clark Law School, released the following statement today:

Although Attorney General John Kroger clearly has the authority to file amicus briefs on behalf of the State of Oregon to defend the constitutionality of the Obama health insurance reform bill, there is strong evidence that he does not speak for the majority of Oregonians in doing so. Polling, both before and after enactment, showed that a significant majority are opposed to the new law on policy grounds.

I believe the new health insurance reform law will do little if anything to control health care costs but will add dramatically to the federal deficit over the coming years. I also believe the Attorney General is mistaken in his conclusion that the law is clearly constitutional.

The health insurance reform legislation is an unprecedented expansion of the scope and reach of federal power. Never before has Congress mandated that every individual American purchase a service or a product. If this provision is found to be constitutional, the result will be a significant erosion of both state autonomy and individual liberty.

The Attorney General said to KATU’s Anna Song that the state’s legal brief in support of the bill will hinge on New Deal-era Supreme Court decisions which found that the “Federal government does have the power to regulate things like health insurance.” Here Mr. Kroger fails to address the actual constitutional question. It is not whether the federal government has the power to regulate health insurance. I am aware of no constitutional scholar who argues this point. The question is whether the government can force individuals to engage in commerce — to buy insurance — when those individuals affected by the mandate were, by definition, not engaged in commerce to begin with.

The Attorney General defended the constitutionality of the individual mandate by saying: “Companies every day are required to buy, for instance, technology to make sure they don’t damage the environment. It’s completely analogous, and the courts will see that similarity.” With all due respect to Mr. Kroger, he again argues a straw man. Regulating industrial emissions is clearly a regulation of existing commerce. Those subject to emissions regulations can choose to cease their polluting activities if they do not wish to be subject to the regulation.

I am aware of no constitutional scholar who claims such regulation is not within the federal government’s Commerce Clause powers. But this is not analogous to Congress mandating that individuals purchase a product, which is a requirement to engage in commerce, not a regulation of commerce.

Mr. Kroger also offered the analogy of state government required liability insurance for car drivers as an example of government mandating that individuals buy a product. Here he mistakenly equates the powers of a state government, which are derived from the state’s general police powers, with the powers of the federal government, which are enumerated and limited by the constitution. State governments clearly have the power to mandate car insurance, particularly given that driving is a state granted privilege. The federal government, however, has only those powers enumerated or implied in the constitution.

Mr. Kroger said he believes that the “bulk of the legal community believes that the law is constitutional.” I disagree. Fourteen state Attorneys General have joined the lawsuit challenging the constitutionality of specific aspects of the health care reform legislation. Numerous respected constitutional law scholars have argued that the legislation is unconstitutional. All of these respected members of the legal community raise very legitimate and important constitutional questions.

There is one issue, however, upon which Mr. Kroger and I definitely agree. He said “I really see this case presenting very important constitutional issues, and it is really going to determine the future direction of our country.” He is precisely correct about this.

The Obama health insurance reform bill will dramatically change the relationship between the federal government and the individual citizen. If the Commerce Clause empowers the federal government to mandate that citizens purchase health insurance, there is no practical limit to federal authority over individuals. The federal government would no longer be limited in any practicable way to the powers enumerated in the constitution.

This is indeed a very important question for the future direction of our country.

END OF STATEMENT

Jim Huffman served as Dean of the Lewis & Clark Law School from 1993 until 2006. As Dean, he hired John Kroger as an Assistant Professor of Law in 2002. Mr. Huffman and Mr. Kroger are personal friends who happen to disagree about this important constitutional issue.

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Posted by at 02:47 | Posted in Measure 37 | 17 Comments |Email This Post Email This Post |Print This Post Print This Post
  • valley p

    “The health insurance reform legislation is an unprecedented expansion of the scope and reach of federal power. ”

    Federal power was not “expanded.” It was merely exercised.

    “Never before has Congress mandated that every individual American purchase a service or a product.”

    See 2nd Militia Act. Every white male had to buy a detailed munitions list.

    “The question is whether the government can force individuals to engage in commerce – to buy insurance – when those individuals affected by the mandate were, by definition, not engaged in commerce to begin with.”

    About 12 million Americans will be eligible for expanded Medicaid, so they are no being forced to buy anything. Another 20 million or so are expected to enroll in exchanges to buy private insurance. For many if not most of these people, they already want to buy insurance but can’t afford it. Now they will have affordable, and subsidized insurance. In other words, the government is paying part of the purchase price. In some cases a substantial part.

    Plus, for the few refusniks, what happens when they get way sick or injured? They rely on the state or the charity of hospitals to be fixed, and this costs everyone else. Why do “conservatives” object to making people pay their way? Lets say Mr Huffman is right and the government cannot mandate insurance purchase. Then there are 2 options. Accept that the rest of us have to pay the way for the few, or simply levy a tax and set up a government run insurance program, exactly the thing that conservatives said they did not want. So watch what you wish for Mr Huffman.

    “The Obama health insurance reform bill will dramatically change the relationship between the federal government and the individual citizen.”

    Most Americans will be completely unaffected by this law. About 40% already get their insurance through the government (Medicare, Medicaid, vest, and federal employees). Another 45% get it through their employers, who get generous tax subsidies to provide it. This law really only affects the 15% or so who currently are priced out of the market, of which a handful truly do not want or need health insurance.

    “The federal government would no longer be limited in any practicable way to the powers enumerated in the constitution.”

    Way over stated. Even if it were true constitutionally, politics would prevent over reaching.

    “This is indeed a very important question for the future direction of our country.”

    Perhaps. But the chances of overturning this law in court are very small. And lets recall that it is usually conservatives who get upset when unelected judges overturn the will of the majority expressed by elected representatives. See gay marriage for case in point.

    I doubt Mr Huffman or very many others care a whit about the constitutionality of the insurance mandate. What they really care about is an expansion of the welfare state.

    • Steve Plunk

      I guess we could use a two hundred year old act to justify this. But was the 2nd Militia Act put to a court test? It doesn’t appear to have been.

      To call this anything other than an expansion of federal power (or as the VP called it a BFD) is playing games. It costs billions of dollars and empowers the government to levy fines they could not before.

      If the court challenges fail then eventually we all will fail. The costs will climb and the country will go bankrupt. It’s all part of the President’s plan to send this country down a path we can never go back. As each day passes I see him as less like the rest of us. Less American and more a citizen of the world who looks upon America as nothing special.

      • Rupert in Springfield

        >I guess we could use a two hundred year old act to justify this. But was the 2nd Militia Act put to a court test? It doesn’t appear to have been.

        Ok, Ive asked that Dean consider this point a little further on two separate occasions as a moments reflection would give clear understanding to anyone why this is an extremely poor example to use as precedent.

        Obviously that isn’t going to happen.

        So at this point the obvious will have to be stated.

        The second militia act has no bearing here as to whether or not BO care is constitutional in regards to forcing someone to buy something.

        National defense is an enumerated power and the militia is considered a part of that national defense. Since the power is specifically enumerated, there can be no argument that requiring the militia be armed ( “well regulated” in the parlance of the time the second amendment was written ) would be constitutional.

        BO care is not the same thing as health care control is not an enumerated power.

        Therefore the Second Militia act hardly provides precedent in a legal fashion for requiring someone to buy health insurance.

        I just thought I would put this one to rest as it is getting a little ridiculous. It’s gone on long enough.

    • Anonymous

      The militia act didn’t apply to all Americans. It applied to the militia. Oh, and funny how liberals NEVER want to go there when talking about Second Amendment law…

  • Conservatively speaking

    Kroger, a has-been duped and/or dead wrong on many counts, should be recalled – and, if his successor must be a Democrat, then may Josh Marquis be the man.

    Rankly, all other DNC droll-aid drinkers need to be put in a longboat and shipped ashore in range of Somali pirates who’ll bite now and take dead aim with fitting results in sight, swooner or later!

  • Bob Clark

    Net neutrality lost in court today. Maybe we might get lucky and the DEMwits’ healhcare blob gets hit hard in court action, too.

  • cecil

    When this law hits the SCOTUS it will be toast. EOM

  • Vallep p is wrong

    The 2nd Militia Act does NOT refute what Huffman writes here. Read it!

    He wrote: “Never before has Congress mandated that every individual American purchase a service or a product.”

    The Militia Act applied only to white males of a certain age, basically militia eligible. There were all sorts of excluded groups of people who were not included. And the acti itself has other constitutional basis – Article 1 Section 8, paragraph 16. Specific enabling language.

    The Militia Act did NOT apply to everyone. It was NOT a requirement that everyone by virtue of living must buy something.

    • valley p

      “There were all sorts of excluded groups of people who were not included.”

      Yes. The same groups that also had no right to vote, like women, children, and slaves. No one wanted armed slaves I guess.

      “I just thought I would put this one to rest as it is getting a little ridiculous. It’s gone on long enough. ”

      Rupert, with all due respect to your scholarship, you don’t have enough of it to put anything to rest. My point to Mr Huffman was simply that the Federal government has indeed required purchases of specific products, and this requirement was never overturned in court. Its fine to argue that this precedent won’t apply, but you won’t be the one to decide this.

      Beyond that, I’m still perplexed (not really) by the conservative argument that this particular clause within the law should be challenged at all. Throw out the purchase requirement and you are going to end up with something worse, probably government run, tax supported insurance, because that is the logical alternative. Its a case of cutting off your nose to spite your face.

  • John in Oregon

    I find Dean Jim Huffman’s constitutional discussion quite useful. I did happen to notice that the McCarran-Ferguson Act was not mentioned. This act gives states the power to regulate the insurance industry which prohibits purchasing insurance products across state lines. (Yes that is what Republicans have been talking about.)

    All this puts Attorney General Kroger in the ridiculous position. He argues that the interstate commerce clause gives the federal government the power force a person who has never engaged in interstate commerce to purchase a product because not engaging in interstate commerce is the same as engaging in interstate commerce. He also argues that the product must be purchased in a state insurance market that doesn’t cross state lines.

    That is the people are forced to participate in interstate commerce by buying a product that can’t be purchased in interstate commerce.

    Some of the comments here do aptly demonstrate that a little legal language in the hands of an activist with a preordained conclusion is just silly. Such is the case with the 2nd Militia Act. Aside from the clear enumerated power of Article I, section 8, clause 16 which states that Congress has the power “To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States”. Lets look at the plain language of the act.

    ObamaCare compels a person to purchase a particular product that is approved by the Federal Government. the 2nd Militia Act does none of that. That act simply requires that some individuals “provide” armament when required.

    The person could meet the requirement in multiple ways which do not include purchasing a product. The person could trade carved stocks with the local blacksmith for the parts necessary to assemble a musket. The person could make arrangements to borrow a musket from his aging grandfather when necessary. The person could band together with a local fraternal organization to construct an armory. In short the person had many options other than purchase under 2nd Militia.

    So we are told that Federal power was not “expanded.” It was merely exercised. Sorry but as the CBO pointed out mandates are an unprecedented expansion of power.

    So why is it necessary to compel compliance if as some say “For many if not most of these people, they already want to buy insurance but can’t afford it.” For most young individuals and families the best deal is an inexpensive major medical policy and out of pocket for needed routine care. Of course that can’t be allowed under ObamaCare once size fits all.

    But the most laughable statement is this > *Most Americans will be completely unaffected by this law. About 40% already get their insurance through the government (Medicare, Medicaid, vest, and federal employees). Another 45% get it through their employers, who get generous tax subsidies to provide it. This law really only affects the 15% or so who currently are priced out of the market, of which a handful truly do not want or need health insurance.* That’s right up there with if you like your insurance you can keep it.

    How does that test out with reality? Rod St. Aubyn, Director of Government Relations for Blue Cross Blue Shield of North Dakota tells us how it works. All polices offered in North Dakota, and any other state, must be approved by the Secretary of Health and Human Services. This approval process will force Blue Cross Blue Shield to reduce its insurance offerings from over fifty different policies…to four.

    Good luck if you think your policy will be approved.

    • valley p

      “That act simply requires that some individuals “provide” armament when required. ”

      Its very specific as to products. A musket, so much ammunition, a pouch for powder, and so forth. Federal government compelling citizens to buy specific private products. Its been done. And we already know state governments do this with auto insurance.

      “The person could meet the requirement in multiple ways which do not include purchasing a product. ”

      That is also true for “Obamacare.” A person could get a job with an employer that provides insurance. A person could be poor enough to qualify for Medicare. A person could file for a hardship exemption. A person could stay on his or her parents policy until age 25. At the end of the day, very few individuals will be compelled to buy something they did not want. its much ado about nothing.

      “So we are told that Federal power was not “expanded.” It was merely exercised. Sorry but as the CBO pointed out mandates are an unprecedented expansion of power.”

      Not true for the reasons stated. Federal and state governments have already exercised this very power.

      “How does that test out with reality? Rod St. Aubyn, Director of Government Relations for Blue Cross Blue Shield of North Dakota …”

      Oh. OK…take it from the insurance industry. Sure, there may be a lot of overpriced, under quality “products” with a lot of fine print that can no longer be peddled. So what? Government regulates products for all sorts of reasons. In this case they are preventing thieves from ripping off customers. They can no longer sell us a policy and then dump us off our coverage when we get sick. Woe is us.

  • skippy

    The merits of the lawsuits are baseless. The commerce law made clear that the federal government has the authority to regulate in the area of insurance manndates. Most constitutional scholars say it is absolutely clear that these lawsuits will not be successful. Meanderings and conspiracy theorists the….. 10th Amendment has not been violated. Huffman fails to mention that 13 of the 14 AG’s are running for higher offices and all but one are Republicans and of course Huffman himself is running for an office.

    • Mary’s Opinion

      I’m not even going to pretend to argue the constitutional/unconstitutional issue of this new mandate. I’m not a lawyer. What I am is an American citizen who is strongly opposed to making health care available to those without it by a partisan federal government mandate. A mandate that forces states to expand their Medicaid programs whether or not there are jobs to provide the taxes that must be raised to support that expansion.

      Please have the courtesy not to say “oh, you just don’t want those folks to have health care.” I do.

      I have three emotional responses to the passage of the health care bill:

      1. Anger over the way those elected to represent us handled it. (Both democrat and republican)
      2. Sadness because the “transformation of America” has begun and as that sadness rises from my core –
      3. It catches in my throat and turns to fear for America’s future.

      The passage of the health care bill may be more about a lot of other things than it is about health care and insurance company reform.

    • Laura

      Well Skippy, SO WHAT if the people that are raising Constitutional Concerns are mainly Republicans? It is quite evident that the Democrats have no concept of what is in the Constitution, let alone our Constitutional rights. Quoting the great one, (in case you don’t know who that is) Obama, I won! That pretty well sums it up in that the Great One wants to ct insured, why would the government want ALL of us except those that get exemptions (yeah, Muslims, Amish and Native Americans) to come under the Government umbrella of their expensive and ridiculous insurance? I won’t reiterate what so many already have regarding Government run programs, we all know that all of them have failed and this one will be the most expensive failure and will cost us all dearly. I applaud Mr. Huffman for challenging the idiot Kroger, who is only trying to make a name for himself and anything else he can get from Obama by licking his boots. Both Kroger and Kulongoski have done little or nothing for Oregon other then to tell the people how stupid we are; and how they need to act for us because we really don’t know what we want…however, as long as the stupids continue to work and bring home the doe, that’s okay. Kroger needs to get a clue. He isn’t a Constitutional Lawyer and trying to make a name for himself will eventually only embarrass himself and bring scorn to Oregon. And as Mr. Huffman said, most Oregonians don’t want or need this pundit to act on their behalf. He needs to serve the people, not himself. And that’s what he is doing now.

  • Jack

    Democrats HATE the Constitution. This should not be NEWS

  • dartagnan

    “State governments clearly have the power to mandate car insurance, particularly given that driving is a state granted privilege. The federal government, however, has only those powers enumerated or implied in the constitution.”

    Pardon me if this is a naive question, but aren’t the powers of states likewise limited by their state constitutions? And I am not aware of anything in the Oregon Constitution that empowers the state to compel people to purchase car insurance.

  • John in Oregon

    dartagnan raises an appropriate question. > *Pardon me if this is a naive question, but aren’t the powers of states likewise limited by their state constitutions?* The answer is a firm yes. However state constitutions may or may not grant power through an enumerated powers process. Sates clearly have different powers under the US constitution. Powers not granted to the federal government.

    dartagnan also said > *I am not aware of anything in the Oregon Constitution that empowers the state to compel people to purchase car insurance.*

    In most states its not an insurance mandate, it works like this. If a person chooses to operate a motor vehicle that person is required to show financial responsibility for liability for damages he may cause. That operator could deposit a sum of money in an escrow account or purchase an insurance policy. Both the City of Portland and Trimet are “self insured” in this way. For most of us the insurance policy is the best solution.

    It’s worth mentioning here that Senator Kennedy was the template for MassachusettsCare which is also the template for ObamaCare. MassCare also contains the must buy and other onerous provisions found in ObamaCare. To my knowledge MassCare has not been tested under the Massachusetts constitution. Kennedy just steamrollered ahead. In any case MassCare can serve as a harbinger for ObamaCare.

    VP defends 2nd Militia as a precedent by saying > *Its very specific as to products. A musket, so much ammunition, a pouch for powder, and so forth.*

    With some knowledge of firearms VP would have not made such a statement. A Spanish, French, English or US made firearm was acceptable. Matchlock or flintlock was acceptable. Cartridge or horn was acceptable. Smooth bore 69, 58, 8 to the pound, or 40 was acceptable. An owned, borrowed or armory firearm was acceptable.

    The reverse is true for the supposed ObamaCare “choices”. > *That is also true for “Obamacare.” A person could get a job with an employer that provides insurance. A person could be poor enough to qualify for Medicare. A person could file for a hardship exemption. A person could stay on his or her parents policy until age 25. At the end of the day, very few individuals will be compelled to buy something they did not want. its much ado about nothing.*

    Lets enumerate those so called “choices”.

    1] The employer could buy a HHS designed policy as part of the employees compensation.
    2] The employee could buy a HHS designed policy.
    3] A person could buy a HHS designed policy subsidized by Medicade.
    4] A person could compel parents to purchase HHS designed policy until 27.

    All of the above are a choice without a distinction. At the end of the day, every individual will be compelled to buy an HHS designed policy. Which pocket pays the tab is irrelevant, not a choice.

    Skippy claims > *The merits of the lawsuits are baseless. The commerce law made clear that the federal government has the authority to regulate in the area of insurance manndates. (sic) Most constitutional scholars say it is absolutely clear that these lawsuits will not be successful. Meanderings (sic) and conspiracy theorists the….. 10th Amendment has not been violated. Huffman fails to mention that 13 of the 14 AG’s are running for higher offices and all but one are Republicans and of course Huffman himself is running for an office.*

    That’s a big chunk, lets break it up. > *The commerce law made clear that the federal government has the authority to regulate in the area of insurance manndates. (sic)*

    While congress has the authority to regulate interstate commerce, when congress passed the McCarran-Ferguson Act they surrendered that authority to regulate insurance to the states by statute. In any case it’s not clear that congress has the authority to compel purchase of any product.

    > *Most constitutional scholars say it is absolutely clear that these lawsuits will not be successful.*

    There it is that old consensus argument again. Everyone agrees so don’t ask the question. I observe that those who raise arguments in favor of federal authority caution tread lightly, there is no such thing as a slam dunk case. This case could be the case to reverse the trend of increasing Federal power.

    As to the notion > *Huffman fails to mention that 13 of the 14 AG’s are running for higher offices and all but one are Republicans>*

    Lets hold that thought for a moment and consider the situation in Arizona. Arizona has a huge hole in its budget which was to be filled by reducing Arizona’s gold plated Cadillac Medicaid plan to levels comparable to other states. ObamaCare’s “maintenance of effort” requirements require Arizona to keep its Medicaid program at current levels and add another $3.8 Billion in additional spending.

    In response the Arizona legislature has passed a statute authorizing legal action to defend the state.

    There is precedence on this issue. In the case Prinz V U.S the Supreme Court ruled that the federal government could not force the states to do its work unless the federal government paid for the cost of the background checks, or unless the federal government did the background checks itself.

    The Arizona Democrat AG has refused to defend the state. The Governors office will take up the case, which is best as the Democrat AG would likely sabotage the case. Oregon AG Kroger is a democrat, enough said.

    Recall I said earlier that MassCare is a harbinger for ObamaCare. Massachusetts has the highest cost of health care of any state and was slated to rise another 25%. The Massachusetts insurance commissioner has confirmed the cause is the increased cost of care under MassCare. The industry lost more than $100 million last year.

    Massachusetts Gov. Deval Patrick is running for re-election and he is NOT HAPPY with the evil non-profit health care industry. His solution, order the industry to provide care at last years prices.

    The industry of course observed that non-profit does not require bankruptcy and simply stopped selling product.

    Gov. Deval Patrick’s solution? Compel the industry to operate at a loss and seek the power to power to review the rates of hospitals and doctors and disallow earnings the Governor feels are too high. The crash and burn of MassCare only took 4 years.

    In this piece, Dean Huffman observed that with the power to compel purchase of a product *”The federal government would no longer be limited in any practicable way to the powers enumerated in the constitution.”*

    As bad as Huffman’s prediction is, the response from VP is terrifying. The American founders created a republic with strictly limited powers. VP is unconcerned about the loss of constitutional protections because its > *Way over stated. Even if it were true constitutionally, politics would prevent over reaching.*

    How did that work? The CBS poll shows 53% disapprove of ObamaCare and only 32% approve. The Speaker simply twisted arms harder. The CBS poll asked one other question, Should Republicans continue to challenge ObamaCare?

    As expected 89% of Republicans and 66% of Independents said YES. The stunning number is the response of Democrats where only 53% say no and 41% say YES. A strong number of Democrats oppose ObamaCare and still the Speaker rammed the bill down the public throat. The people said NO and that was politics preventing overreaching how?

    We don’t need to speculate as Federal Bureaucracies are being given the power of warrantless regulatory search and seizure of private property. All private property. We shouldn’t worry about the Fourth Amendment as Bureaucrats are not searching and seizing for criminal investigations.

    And the Fifty Amendment protection of just compensation for property seized? That, well its just an unimportant detail.

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