Welcome to the National Campaign to Restore Civil Rights Interview series, a regular examination of the court cases that shape and affect our lives.
In the wake of the health care reform, thirteen state Attorneys General have challenged the constitutionality of the new legislation in courts on grounds that it violates the balance of power between the federal and state levels of government. Opponents of reform claim that the federal government has treed into territory that should be governed by states by mandating that everyone should purchase health insurance or purchase an extra tax. Supporters of reform argue that the new system falls well within Congress’s constitutional powers and that attempts to oppose the law are more about political theater than actual constitutional concerns. They also pointed the fact that states will be allowed to a significant flexibility in shaping insurance exchanges or even opting out of the legislations as long as they are able to create an alternative system that meets certain requirements.
To learn more about legal challenges to health care reform and the concept of federalism we spoke with Doug Kendall, founder and President of the Constitutional Accountability Center.
PERRY: Can you explain federalism?
KENDALL: Sure, federalism is really just about the division of power in our governmental system between the federal government and the states. And so the way our framers set up our system was that we have a Federal government that set up dissolve and address national problems. And we have state governments which are designed to address state and local issues. And sometimes that overlaps and sometimes you have issues where the state and the federal government work together, and sometimes it is handled at one level or another. In this country there is this idea and mostly advanced by conservative and libertarian organizations that federalism is really about weakening government or no government at all, and that’s a notion that I think is behind some of these lawsuits and I think is one that really should be dismissed. The federalism in this country is about how government works not about whether we should a government in the first place.
PERRY: Can you tell us a bit about the pending legal challenges to the health care reform?
KENDALL: Sure, Tricia. There are two lawsuits that have been filed challenging health care reform. The leading suit was filed in the state of Florida, by the Florida Attorney General and twelve other state Attorneys Generals. There’s also a separate suit that was filed in Virginia by the Virginia Attorney General, Ken Cuchineli. The Virginia suit only raises the question of whether the federal government can require individuals to either buy insurance or pay a fine. The Florida suit raises that issue too, but is mostly arguing that health care reform imposes unjustifiable costs upon the states.
PERRY: Are these claims right? Does this legislation overstep the powers of the federal government?
KENDALL: Absolutely not. Particularly as to the states, they are entirely free to rid themselves of any burdens opposed by the act, by simply withdrawing from the federal Medicaid program. And for that reason the Florida lawsuit is embarrassingly weak as a legal matter. And the reality is that the health care reform legislation reflects the genius of our federal system which makes the Attorney General’s grant standing in this lawsuit all the more unfortunate. The states have a long history of leadership on health care reform. Indeed Congress used a health care reform signed into law by former Massachusetts Governor Mitt Romney, as one of its models in crafting this legislation. And the Patient Protection and Reformable Act gives states a great deal of flexibility to shape insurance exchanges, allowing states to continue to act as elaborators of our democracy.
PERRY: Why do you think this legislation is so much more controversial than, say mandatory car insurance?
KENDALL: Well, it really shouldn’t be. I mean, the act contains an individual mandate which requires that everybody who can afford to either get insurance or pay a fee, for a very simple reason: If you don’t push people who can afford it to get insurance, they impose tax on taxpayers. According to statistics compiled by a group called Families U.S.A, in 2005 48 million Americans were uninsured and they incurred 48 billion dollars in medical costs that they could not pay, an average of 900 dollars per uninsured individual. This is considerably more than the tax penalty that the act imposes on individuals who choose not to obtain insurance. This is the very same reason, we have a requirement that every driver in this country have auto insurance because when an uninsured driver causes serious accidents they often call for huge costs that can not be paid without insurance. And nobody has a right to impose uninsured costs on the taxpayers and that is basically where these lawsuits are going.
PERRY: What effect do you expect these lawsuits will have?
KENDALL: I think these lawsuits are basically political theater that are being filed mainly as a way for politically conservative Attorney Generals to state their opposition to health care reform. I think the suits representatives list the taxpayer resources and I’m confident that the courts will exposure them relatively quickly.
PERRY: Thank you very much for speaking with us today.
KENDALL: Thanks for having me.
PERRY: That was Doug Kendall, Founder and President of the Constitutional Accountability Center.
The National Campaign to Restore Civil Rights is a collection of more than 100 civil rights organizations and individuals who came together to ensure the courts protect and ensure justice, fairness and opportunity for everyone. The campaign focuses on public education and outreach, finding ways to get the message out about the impact of court rulings on our communities, our opportunities and our rights.