Critics, including Mr. McKenna's own governor, say the challenge is a sour-grapes political stunt by mostly Republican attorneys general. But McKenna spoke with the Monitor by telephone at some length about why he supports the challenge, and why he feels the healthcare reform law is a dangerous and unconstitutional expansion of Congress's power over American citizens.
QUESTION: In the early coverage of this issue, a lot of feeling has been expressed that this is just political theater and not real, meaningful legal action. What are your thoughts on that?
ANSWER: It’s typical of opponents to use ad hominem attacks because they don’t like the fact that the suit was brought. But there’s very little content of substantive and legal nature in their criticisms. The fact of the matter is that the individual insurance mandates in the bill are unprecedented in American history.
The federal government has never attempted to require the American people to buy a particular product in the private sector. It’s not supported by the Commerce Clause [which grants Congress the authority to regulate interstate commerce]. The 10th Amendment says it's not a power granted to the federal government but is reserved by the people, so there is, in fact, some serious concerns, which is why 13 AGs [attorneys general] have joined this challenge.
Q: Are you in close contact with those others?
A: Of course, we’ve been talking for the last few months. We started talking as a result of the Nebraska compromise – or the "Cornhusker kickback," as it’s sometimes called. And two of us got together, and others joined us. Fortunately, they [the US House and Senate] promised to remove that provision, so they probably wont have to address that through litigation…
Q: Legal experts have said, “that train left the station 70 years ago when courts began to expand Congress’s ability to regulate commerce…”
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.
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.