(Jim Clark) – The current dust up between Gov. Jim Gibbons and Attorney General Catherine Cortez-Masto about whether Nevada should join the lawsuit brought by some 19 (and growing) individual states against the federal government challenging the newly enacted health care reform bill is front page news these days.
Legally it’s a very interesting question. Some of the smarter lawyers I know have dismissed the effort as a non-starter because the federal government always gets what it wants when it comes to imposing unfunded mandates on states. They may not be right this time. Historically the domination of federal power over individual states has been accomplished by withholding money. For example federal pressure was exerted on states to enact legislation defining a “drunk driver” as one whose blood alcohol was 0.08 percent or higher. Nevada, reliant on tourism, “Sin City” and heavy-drinking gamblers, resisted the pressure until Congress threatened to withhold federal highway funds unless the state legislature knuckled under. The Silver State, like all others, caved.
The current brou-ha-ha is different. Clearly the biggest financial threat to the individual states is the expansion of the Medicaid program by opening eligibility for free medical care to families that earn twice the income as the statistical average. Although the federal government funds part of the program (or in the case of Nebraska all of it because Sen. Harry Reid needed Sen. Ben Nelson’s vote) the mandate threatens to bankrupt every state. The legislative process may have been disgusting but based on historical precedent a legal challenge to Congress’ authority is iffy because it’s just about money.
The other new federal requirement … that uninsured citizens fork over their hard earned bucks to buy health insurance … may have crossed the line. Liberals argue that this is no different than states requiring vehicle owners to obtain liability insurance but they miss the point. The 10th amendment of the Constitution reserves to the states governmental powers not specifically enumerated as belonging to Congress. A federal law forcing citizens to purchase an insurance product or go to jail seems to stick in everyone’s craw and could be the petard on which the health care reform bill will be hoisted.
Historically the US Supreme Court has acquiesced in Congress’ power to legislate but things could be different this time. In 1932 and again in 1936 voters confirmed Franklin Roosevelt and huge Democratic majorities in Congress only to see “progressive” legislation overturned by a Supreme Court loaded with justices appointed by former presidents Coolidge and Hoover, both Republicans. Roosevelt then hatched a plan to increase the size of the Supreme Court and “pack” it with liberal justices appointed by him. Public opinion disdained his scheme and Congress then tempered its appetite for radical social legislation, at least until Roosevelt could fill court vacancies with liberal justices.
The parallel is clear. In 2001, President George W. Bush announced his intention to extend his influence beyond his presidency by reshaping the Supreme Court. We are about to see if he was successful. There is a clear conservative majority on the court now and the recent retirement announcement by liberal Justice Stevens may bolster that because President Obama must nominate a “confirmable” (read moderate) successor in an election year.
Whatever the ultimate legal result the challenge is a political winner. Gibbons’ two GOP challengers both support the move polls show a majority of voters favors repeal by any means possible. While the federal court system moves at a glacial pace elections occur by the calendar and this issue may precipitate a return of conservatives to power.
(Mr. Clark is President of Republican Advocates, a vice chair of the Washoe County GOP and a member of the Nevada GOP Central Committee; he can be reached at email@example.com)