The Accidental Governor’s hissy-fit special session on Monday

Posted by AzBlueMeanie:

Why do conservatives waste millions of state taxpayer dollars on "junk lawsuits" that are frivolous claims? Because it feeds their fundraising coffers from their conservative base.

Monday is a special session called by the Accidental Governor for political posturing, pure and simple. Attorney General Terry Goddard would not join the politically motivated lawsuit to challenge the health care reform act, finding that the claims are not supported by fact or existing law (Rule 11 requirement for attorneys not to file frivolous claims).

So our Accidental Governor wants to hire her own attorney, at taxpayer expense mind you, to join this politically motivated lawsuit (paging Kenneth Starr). It is political posturing because the Accidental Governor believes she will be the Republican nominee for governor (a big assumption on her part) and Terry Goddard will be the Democratic nominee for governor in November.

Our John Birch Society, Tenther, states' rights nullification, secessionist radical Republicans in the Arizona Legislature will give the Accidental Governor the authority she seeks.

Arizonans should demand that the Accidental Governor and these radical Republicans pay the attorney's fees and cost for this politically motivated frivolous lawsuit out of their own pockets. The taxpayers should not be forced to pay for political posturing to benefit the Jan Brewer for Governor campaign and adding to the deficit in our state budget. Contact your state legislators and demand that they not waste your precious tax dollars on junk lawsuits when they should be spending the money on education and health care.

This "junk lawsuit" is based upon antiquated commerce clause and Tenth Amendment theories rejected by the U.S. Supreme Court since the 1930s. This case has virtually no chance of succeeding in court. As the New York Times editorializes today The Legal Assault on Health Reforms:

No sooner had President Obama signed comprehensive health care reform than the attorneys general of 14 states scurried to the federal courts to challenge the law. Their claims range from far-fetched to arguable and look mostly like political posturing for the fall elections or a “Hail Mary” pass by disgruntled conservatives who cannot accept what Congress and the president have done.

They seem unlikely to succeed because the law was carefully drafted to withstand just this kind of challenge.

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A central contention of both suits is that Congress has no power under the Constitution to compel individuals to buy health insurance or pay a penalty. Congress has never before compelled people to buy anything from a private company, so there is no precisely apt Supreme Court precedent. Still, two provisions in the Constitution give Congress broad powers to regulate economic activity — the power to impose taxes for the general welfare and the power to regulate interstate commerce.

The new law has been framed to fall within both of those provisions. The penalties for not buying insurance have been structured as a tax, to be collected by the Internal Revenue Service. And the law’s text includes a series of Congressional findings: that health insurance and health care comprise a significant part of the economy, that most policies are sold and claims paid through interstate commerce, and that the mandate is essential to achieving the goals of creating effective health insurance markets and achieving near-universal coverage.

Such findings don’t make the new law bullet-proof, but they help to insulate it from attack. It seems a long shot that the Supreme Court would invalidate the mandate, if the cases ever reach that level.

A second contention, emphasized by the 13 state attorneys general, is that the new law amounts to an unprecedented encroachment on the sovereignty of the states. It will require them to greatly expand their Medicaid programs, imposing substantial costs, and add administrative burdens in setting up new insurance exchanges that will offer an array of private policies.

That seems a stretch. No state is required to set up an exchange. If states fail to do so, the federal government will take over. Nor is any state required to participate in Medicaid, a joint federal-state program in which Washington pays half or more of the costs.

It is true, as the suit contends, that it may not be practical for states to drop out of a Medicaid program that serves many of their poorest residents. But it is well established that Congress can attach conditions to the money it supplies, and Congress has long imposed Medicaid requirements that states must meet.

The attorneys general are doing a disservice to their constituents . . .

There was a decent legal analysis in the Arizona Republic on Sunday with which I would agree. Precedent on side of health-care law:

Defenders of the newly enacted national health-care law and its rule that all Americans get health insurance have a powerful and recent Supreme Court precedent on their side, a 2005 ruling that upheld federal restrictions on homegrown marijuana in California.

At issue in that case, like the coming challenge to the health-care mandate, was the reach of the federal government's power.

Conservative [activist] Justices Antonin Scalia and Anthony Kennedy joined a 6-3 ruling that said Congress could regulate marijuana that was neither bought nor sold on the market but rather grown at home legally for sick patients. They said the Constitution gave Congress nearly unlimited power to regulate the marketplace as part of its authority "to regulate commerce." Even "non-economic local activity" can come under federal regulation if it is "a necessary part of a more general regulation of interstate commerce," Scalia wrote.

Last week, Obama administration lawyers pointed to Scalia's opinion as supporting the constitutionality of broad federal regulation of health insurance, and most legal experts agreed.

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The court's ruling in the 2005 case, Gonzales vs. Raich, "is an enormous problem" for those who contend the health-care mandate is unconstitutional, said Simon Lazarus, a lawyer for the National Senior Citizens Law Center.

"It clearly says Congress has vast regulatory authority over interstate commerce."

* * *

While the Bill of Rights put clear limits on the government's power to interfere with an individual's freedom of speech or free exercise of their religion, the Constitution does not put clear limits on Congress's power. Article I says "Congress shall have the power to lay and collect taxes . . . (to) provide for the common defense and general welfare of the United States . . . (and) to regulate commerce." Since the New Deal era of the 1930s, the Supreme Court has repeatedly said that the federal government can regulate almost anything that involves economic or commercial activity.

Several constitutional-law experts said last week it is somewhere between unlikely and hard to imagine that the Supreme Court would strike down the new national health-care law.

"In my view, there is a less than 1 percent chance that the courts will invalidate the individual mandate," said George Washington law professor Orin Kerr, a former clerk to Justice Kennedy.

* * *

Critics of the new mandate to have health insurance often claim the Founding Fathers could never have envisioned the federal government telling individuals they must take an action or buy a private product. This is not quite correct.

As one of its earliest actions, Congress passed the Militia Act of 1792, which was signed by President George Washington. It mandated that "each and every able-bodied white male citizen" must "be enrolled in the militia." Hardly shy about imposing federal regulations on private citizens, the militia law said each new recruit must show up within six months carrying "a good musket or firelock, a sufficient bayonet and belt, two spare flints, a knapsack (and) a pouch to contain not less than 24 cartridges suited to the bore of his musket or firelock."

Winkler also dismisses the argument that Congress cannot penalize someone for "doing nothing," such as not buying health insurance. "If you don't believe me, just 'do nothing' this April 15 when your tax bill is due," he said.

I find it curious that Republicans who whine the loudest about tort reform and junk lawsuits which are frivolous claims are the ones who file so many of these junk lawsuit frivolous claims.