Opinion Columns & Blogs

Why we are fighting

Oral arguments this week over the constitutionality of the federal health care law – called the Affordable Care Act by supporters and “Obamacare” by detractors – will make history.

For the first time, a majority of the states are standing together as plaintiffs and asking the U.S. Supreme Court to reject further expansion of federal power. The six hours of oral arguments the court has dedicated from Monday through Wednesday already place this case alongside constitutional giants like Brown v. the Topeka Board of Education (segregated schools are unconstitutional) and Miranda v. Arizona (“You have the right to remain silent …”).

Supporters of the law, including the Obama administration, want the court to see this as a case about health care. From their perspective, the new federal law may be an extreme solution but it is justified to address an unprecedented problem. They will work to convince the court that the health care marketplace is “unique.”

Kansas and our 25 state partners ask the court to take a longer view of what is truly “unique” about America. We make the case that Congress cannot abandon our Constitution’s two-century commitment to limited federal government in an ill-considered effort to solve health care financing problems.

We are challenging the authority of the federal government to commandeer American citizens (through the individual mandate) and to commandeer state taxpayers (through the required Medicaid expansion) in pursuit of Washington’s objectives. No matter the nobility of its purpose, Congress may not use extra-constitutional powers that it simply does not possess.

•  The individual mandate is unprecedented: Never before has Congress claimed power to order or compel American citizens to engage in commerce so it can regulate their behavior under the Constitution’s Commerce Clause. If Congress really possessed this attractive power, it surely would not have waited 220 years to use it. If the Supreme Court now recognizes this power, Congress is guaranteed to use it again – on matters having nothing to do with health care.



• The power the federal government seeks is unlimited: Despite volumes of legal briefs filed in the health care case, the federal government has yet to articulate a persuasive explanation of how this new power would be limited. We believe that’s because there would be no practical limit. To recognize this power would be to transform our federal government from one of limited, enumerated powers into one with the broad, general police powers that historically have been reserved for states.

• Granting this power is unnecessary: If Congress wants to spread health care costs across the entire population by government regulation rather than allowing the marketplace to allocate costs, Congress has ample tools to accomplish that. Through its traditional taxing and spending powers, Congress could raise money from citizens and spend it to pay for health care coverage (as it does, for example, with Medicare). But fearing a political backlash over the price tag, Congress instead tried to disguise what it was doing by inventing a new “power” to conscript individuals and states into paying what Congress itself was unwilling to pay.

This lawsuit has more to do with liberty than with health care. Fundamentally, the question the Supreme Court faces is this: Does our federal government remain a government of limited, enumerated powers, or can the modern Congress effectively regulate whatever or whomever it wishes, however it wishes, whenever and wherever it wishes, merely by pointing to its power to regulate commerce?

This is an extraordinarily important case for the future of America. Kansas can be proud to be an active part of it – on the side of individual liberty and limited government.

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