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Suthers on the Healthcare Lawsuit

June 21, 2010

I heard Colorado Attorney General John Suthers speak Saturday about the progress of the suit being brought by 19 states–14 attorneys general and 5 governors–against the federal government over Obamacare.

We all know that the 2010 election is important; I’ve been saying that it is as pivotal as the election of 1860. Suthers remarks seem to agree: he said the 2010 election is about federalism, about federal control and power over the individual lives of citizens. The healthcare bill–don’t ever mistake it for mere reform–is the most sweeping power grab in our history and an affront to the very concept of federalism.

The left has long ago jettisoned a belief in the concept of federalism yet only certain powers are granted to the federal government in Article I Section 8 of the Constitution. Those powers not explicitly granted to the federal government are reserved to the states or the people.

He noted that healthcare is not an enumerated power in the Constitution. So how does the left believe they can do this? The more cynical among us–me included–say that they do it simply because they want to and they have the votes. Suthers said that they relied on the Commerce clause. Funny thing about that, though: when CNS News asked key Democrat figures at the time, they couldn’t come up with an answer. Nancy Pelosi just sputtered, “Is that a serious question?” The Commerce clause is merely a fig leaf.

Suthers explained that the commerce clause was meant to regulate commerce between the individual states because at the time there were tariffs between them. It was meant to regulate interstate commerce. Over time it has been stretched to mean any economic activity across state lines. Although he didn’t mention it, the case which grossly expanded the commerce clause was Wickard v. Filburn, 317 U.S. 111 (1942) in which Filburn, a farmer raising wheat on his own property to feed his chickens, was ruled by the Supreme Court to have engaged in interstate commerce.  There are attempts today to overturn that ruling, but that’s another story. Ever since 1942, the Congress has relied on the commerce clause to justify a whole host of things.

But that, Suthers pointed out, was economic activity. The federal government influences our economic activity by incentives, such as tax credits for solar panels, or by offering either individuals of states federal dollars in exchange for playing by their rules. Drive 55 or don’t get federal highway money. We should never forget, however, that it is reality not “federal” money but rather our tax dollars. They’re bribing us with our own money!

Healthcare is different. This is the first time in our history that the government is saying to individuals, “Buy healthcare or be fined and punished up to 2% of your income by the IRS.” The Congressional Budget Office, he said, has been warning Congress since 1998 that federal power has never been used to punish citizens for not buying something; in essence, for a lack of economic activity.

If this law is allowed to stand, there is no limit on what the government can do. If this stands, the federal government can not only give you a tax break for buying that solar panel but also fine you for not buying one.

Recognizing, perhaps, the weakness of the commerce argument, Holder’s Department of Justice is basing its defense on the taxing power of the federal government. This, too, fails, said Suthers, because under Article I Section 9 of the Constitution federal taxes would have to be apportioned to the states based on population; this is individual. This, he said, amounts to a “capitation” tax, or a head tax, which the federal government is not allowed to levy.

Let me note here that it was a hearth tax that helped precipitate the French Revolution and a tea tax that helped precipitate our first Revolution. And yet this illegal health tax is not enough for the left: they are planning “cap and tax” right now.

One final note. For his courageous stand for our constitutional liberties, John Suthers has a big liberal target on his back. He is our only Republican elected official at the state level right now. The attorney general’s office is not usually a high-profile race but in 2010 it is a key to our liberty. The 9-12 groups in Colorado collected over 10,000 signatures in support of his efforts. But that is not enough: Please support him financially as well. What do you think will happen to the lawsuit if he is defeated?


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