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.


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.