According to this article, Ben Nelson is doing everything possible to stop thirteen states’ attorneys general to stop thinking about filing lawsuits against Obamacare if and when it becomes law. Meanwhile, Sen. Hatch, Ken Blackwell and Kenneth Klukowski have written a fantastic, well-written op-ed in this morning’s WSJ. First, let’s start with Sen. Nelson’s desperate plea:

“Senator Nelson insisted that he had not asked for the Cornhusker Kickback to be placed in the U.S. Senate version of the health care bill to secure his vote. Senator Nelson told the attorney general that it was simply a ‘marker’ placed in the U.S. Senate version of the bill and assured the attorney general that it would be ‘fixed,’ says the memo.

The document goes on to say: “Senator Nelson said it would be ‘fixed’ by extending the Cornhusker Kickback (100% federal payment) on Medicaid to every state.”

If Sen. Nelson is telling the truth, then the pricetag on this bill just got significantly more expensive. If a tiny state like Nebraska’s share of the Medicaid expansion costs $100,000,000 over a decade, think of the expense the federal government would pick up for New York, California, Florida, Michigan, Illinois, Pennsylvania, Ohio and Texas under the same deal.

Before we get worried about that ‘fix’, though, let’s consider the arguments made in Sen. Hatch’s WSJ op-ed:

First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress’s powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress’s power to regulate interstate commerce.

Congress has many times stretched this power to the breaking point, exceeding even the expanded version of the commerce power established by the Supreme Court since the Great Depression. It is one thing, however, for Congress to regulate economic activity in which individuals choose to engage; it is another to require that individuals engage in such activity. That is not a difference in degree, but instead a difference in kind. It is a line that Congress has never crossed and the courts have never sanctioned.

In fact, the Supreme Court in United States v. Lopez (1995) rejected a version of the commerce power so expansive that it would leave virtually no activities by individuals that Congress could not regulate. By requiring Americans to use their own money to purchase a particular good or service, Congress would be doing exactly what the court said it could not do.

I’m confident that the Roberts Court would slap down the individual mandate if the Democrats try justifying it under the Interstate Commerce Clause. Like I wrote in this post, that’s what the Democrats’ likely defense will be based on Speaker Pelosi’s reply to a health care/constitutional question:

CNSNews.com: “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”

Pelosi: “Are you serious? Are you serious?”

CNSNews.com: “Yes, yes I am.”

Pelosi then shook her head before taking a question from another reporter. Her press spokesman, Nadeam Elshami, then told CNSNews.com that asking the speaker of the House where the Constitution authorized Congress to mandated that individual Americans buy health insurance as not a “serious question.” “You can put this on the record,” said Elshami. “That is not a serious question. That is not a serious question.”

Speaker Pelosi’s office later issued a statement saying that the ICC was the constitutional provision that gave Congress the authority they needed to intrude on our freedoms:

Pelosi’s press secretary later responded to written follow-up questions from CNSNews.com by emailing CNSNews.com a press release on the “Constitutionality of Health Insurance Reform,” that argues that Congress derives the authority to mandate that people purchase health insurance from its constitutional power to regulate interstate commerce.

Sen. Hatch’s point on the ICC can’t be ignored:

It is one thing, however, for Congress to regulate economic activity in which individuals choose to engage; it is another to require that individuals engage in such activity.

I’ve heard Democrats make what I call the ‘Drivers License Argument’. It’s an argument that I’ve dismissed for multiple reason. First, car insurance is required by state governments, meaning that there aren’t any Tenth Amendment issues. Second, driving is a privilege, not a right. If you want to partake in a privilege, there’s automatically a price that comes along with that privilege. Living is a right guaranteed in all our Founding Documents. A person’s existance shouldn’t require his/her’s purchasing anything.

Third, if you want to make the car insurance/health insurance argument an apples-to-apples argument, then certain adjustments must be made. When a person buys car insurance, the government doesn’t dictate that that person purchase full coverage, what the deductible is, whether they have to purchase comp or towing insurance, etc.

In the Obama/Pelosi/Reid legislation, there are tons of mandates, starting with the individual mandate. The Obama/Pelosi/Reid legislation also fines people for buying HSA’s and other policies that don’t meet with their approval. (Actually, I suspect that it doesn’t meet with a lobbyist’s approval but that’s just speculation.)

Here’s AG McMaster’s reply to Sen. Nelson’s inquiry:

According to the memo, McMaster responded to Nelson by saying that the goal of the GOP attorneys general was to remove the Nebraska Medicaid provision from the bill and that “he saw no way that he, nor any of the state attorneys general, will support extension of the Cornhusker Kickback to every state nor be a part of a deal like that.”

TRANSLATION: Take a hike.

The AGs aren’t interested in negotiating. The AGs’ interest is in defending the U.S. Constitution. Sen. Nelson’s interest is in spinning his way out of a political difficulty of his own making.

Here’s another key portion of Mssrs. Hatch, Blackwell and Klukowski’s op-ed:

Some have argued that Congress may pass any legislation that it believes will serve the “general welfare.” Those words appear in Article I of the Constitution, but they do not create a free-floating power for Congress simply to go forth and legislate well. Rather, the general welfare clause identifies the purpose for which Congress may spend money. The individual mandate tells Americans how they must spend the money Congress has not taken from them and has nothing to do with congressional spending.

It’s apparent that the Democrats’ scramble for 60 votes, coupled with the TEA Party Movement, have created alot of unexpected constitutional difficulties for the Democrats. Until now, the health care debate hasn’t focused on constitutional issues. It’s mostly dealt with taxes, mandates and expanding government.

The minute that an appellate court rules something unconstitutional is the minute that the conversation shifts. That’s because the appellate court ruling would gut the Democrats’ reforms. The minute that happens is the minute that Republicans start highlighting their reforms, all of which are constitutional.

Nelson has been under tremendous political pressure since details of the deal emerged and on Tuesday, Rasmussen Reports released the results of an automated poll that showed troubling numbers for Nelson, who is not up for re-election until 2012.

One day later, Nelson aired a television ad explaining his vote.

“With all the distortions about health care reform, I want you to hear directly from me,” the Democratic senator said in the ad.

“The distortions” are found in Nelson’s ad, which the NYTimes wrote about here:

“With all the distortions about health care reform, I want you to hear directly from me,” Mr. Nelson says in the ad, which shows his face, up close, speaking straight into the camera as music plays. In the 30-second spot, Mr. Nelson goes on to describe the legislation as “a common sense approach” that will lower costs for families and small businesses, protect Medicare, guarantee coverage for pre-existing conditions, reduce the deficit and, he adds with emphasis, “It’s not run by the government.”

First, if it’s true that all of the states will get the same deal as Nebraska got on Medicaid expansion, the Obama/Pelosi/Reid legislation won’t “reduce the deficit.” Second, there’s nothing in the legislation that cuts costs. There are only provisions that hide the still-existing costs. Third, the tax increases in the Obama/Pelosi/Reid legislation won’t cut costs “for families and small businesses.” Instead, they’ll increase costs.

Not included in the NY Times’ reporting is Sen. Nelson saying that “some people want to do nothing while others want government” to take over health care. That’s downright dishonest. It’s true that Republicans, and the public, would prefer doing nothing to passing the Obama/Pelosi/Reid legislation. It’s only in that context, though, that people want to do nothing. Republicans have a plan that’s co-sponsored by Paul Ryan, Devin Nunes, Tom Coburn and Richard Burr that increases private sector competition, guarantees coverage for people with PECs, and genuinely reduces costs.

Mssrs. Hatch, Blackwell and Klukowski’s constitutional critique wouldn’t be complete without this:

A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government.

This violates the letter, the spirit, and the interpretation of our federal-state form of government. Some may have come to consider federalism an archaic annoyance, perhaps an amusing topic for law-school seminars but certainly not a substantive rule for structuring government. But in New York v. United States (1992) and Printz v. United States (1997), the Supreme Court struck down two laws on the grounds that the Constitution forbids the federal government from commandeering any branch of state government to administer a federal program. That is, by drafting and by deliberate design, exactly what this legislation would do.

The federal government can’t order the states what policies it must adopt any more than the Senate or House could instruct the Pentagon to draw up withdrawal plans from Iraq. The federal government can’t force the states into passing that type of legislation because the Tenth Amendment prohibits it. The House and/or Senate can’t force the Pentagon to draw up plans of any sort because of the constitutional provision for seperation of powers.

If the courts agree with these thirteen state attorneys general and with Sen. Hatch, then the health care fight will have been a gigantic waste of time. Sen. Nelson will have lost his Senate seat for nothing. President Obama, Speaker Pelosi and Sen. Reid will have wasted a year on unconstitutional legislation instead of focusing on the economy.

One bit of good news is that we won’t be spending trillions of dollars on health care legislation that doesn’t lower health insurance premiums, lower health care costs or rations care for senior citizens.

Another bit of good news is that a Republican majority in the House could start reforming health care in 2011.

Technorati: Reforms, Health Care, Ben Nelson, Harry Reid, Speaker Pelosi, President Obama, Medicaid, Democrats, Orrin Hatch, Kenneth Blackwell, Tenth Amendment, Constitution, Attorneys General, Elections

Cross-posted at California Conservative