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Q&A with a state attorney general: fatal flaws in healthcare bill

The Monitor talks to Rob McKenna, the Republican attorney general of Washington State, who is one of 14 attorneys general who say the new healthcare bill violates the US Constitution.

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A: First of all, we are talking about forcing people to enter the stream of commerce, not about those already in, and need to be regulated. This will force people to go into the private market and buy a product on penalty of fine or going to jail…. That is unprecedented, and there is no principal distinction between forcing Americans to go out into the private sector and buy a private product and forcing them to buy anything else that Congress gets in its mind to do.

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Q: One of the arguments is that there is no other way to regulate the industry – that in order to regulate the behavior of insurance companies, i.e. not deny coverage for preexisting conditions and all those kinds of things, that you had to require the whole marketplace to participate.

A: It is a policy argument in search of a constitutional foundation. The foundation simply doesn’t exist. If they want to force Americans to buy insurance, then they’ll have to seek a constitutional amendment. More than 100 years ago, when the Congress wanted to force Americans to pay taxes on their income, they sought a constitutional amendment allowing the income tax.

These provisions of the Constitution actually mean something…. There are real limits on federal powers, and the fact that the Supreme Court has allowed broader use of the Commerce Clause in other cases doesn't begin to address the radical expansion of federal power represented by individual insurance mandates….

Two… there are other mechanisms available to them to encourage people to buy health insurance … so they should utilize those. For example, impose the deregulation of insurance, so there aren’t so many mandates which are so incredibly expensive and limiting people’s choices. The point is, it’s a policy they have to solve…. They are not given a free pass on constitutional questions just because this is the most convenient way for them to achieve their policy goals.

Q: Do you hope to get this to the Supreme Court sooner rather than later. Some of the provisions are already going into effect.

A: One thing I want to make clear is our lawsuit targets very specific provisions. We don’t have constitutional concerns with many aspects of the bill. It’s clearly within the federal power to regulate healthcare insurance, for example…. This is about specific provisions … and as to how the federal government is expanding its power through those provisions. So these are questions that should be resolved, but those provisions which take effect this year are addressed in our lawsuit. Some of the provisions don’t take effect until 2014.

Q: But it has to do with how this is all tied together, does it not?

A: Yes. The individual insurance mandate doesn’t take effect until 2014 – so that if you are right, the Congress doesn’t implement them for four years. So there is time here ... to calm down and allow the process of checks and balances to do its work.

Q: Are you confident that you will prevail?

A: I think we have very strong arguments. There hasn’t been much jurisprudence on the 10th Amendment or Commerce Clause in this particular context. So we’ll see…. But these kinds of questions are exactly why we have the judiciary branch and federal courts.

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