ATTORNEY GENERAL JOINS FEDERAL LAWSUIT CHALLENGING HEALTH CARE MANDATE

PRESS RELEASE
Colorado Department of Law
Attorney General John W. Suthers

FOR IMMEDIATE RELEASE
March 22, 2010

CONTACT
Mike Saccone, Communications Director
303-866-5632

ATTORNEY GENERAL JOINS FEDERAL LAWSUIT
CHALLENGING HEALTH CARE MANDATE

DENVER — Colorado Attorney General John Suthers announced today he will join with nearly a dozen other state attorneys general to challenge the constitutionality of the individual health care mandate in the recently enacted Patient Protection and Affordable Care Act.

“The United State Constitution enshrines a form of limited government to protect the rights of the states under a system of federalism and to protect the individual freedom of American citizens. The individual mandate to purchase insurance or suffer economic sanction violates constitutional principles and lacks constitutional authority,” Suthers said. “The Constitution gives Congress the enumerated powers to regulate those engaged in interstate commerce. It does not give the Congress the power to compel a citizen, who would otherwise choose to be inactive in the marketplace, to purchase a product or service and thereby become subject to congressional regulation. Such an expansion of the current understanding of the Commerce Clause would leave no private sphere of individual commercial decision making beyond the reach of the federal government. It would render the 10th Amendment meaningless.”

The lawsuit also will challenge the constitutionality of the penalties included in the legislation for individuals that decide to forgo purchasing health insurance. Although government can tax commercial activity, this law would constitute a tax on an individual’s commercial inactivity and not on the states’ populations or another concrete metric. Such a tax would not be apportioned between the states, as required under the Commerce Clause. The courts, too, have established that Congress cannot exercise its tax powers to “coerce’ individuals or businesses.

The Office of the Attorney General is vested with the inherent authority to act and enter lawsuits concerning the general welfare of the state, People of the State of Colorado, ex rel Salazar v. Davidson, 79 P. 3d 1221, 1231 (2003).

FEDERAL HEALTH CARE PLAN REMARKS
March 22, 2010

It is not part of my job as the Attorney General of Colorado to weigh in on whether the Patient Protection and Affordability Health Care Act passed by Congress yesterday is good public policy. It is however, part of my job to defend the rights of the State of Colorado and its citizens from the exercise of federal power in violation of the United States Constitution.
The U. S. Constitution gives the federal government only enumerated powers. All other powers are expressly left to the states and their people. One such enumerated power in the Constitution is the power to regulate interstate commerce. Under that enumerated power, anyone who voluntarily engages in commercial activity that affects interstate commerce is subject to regulation by Congress. So, for example, Congress may regulate people who choose to buy or sell insurance to the extent that impacts interstate commerce.
But in the health care legislation passed yesterday, Congress is attempting, for the first time in our history, to use the interstate commerce power to regulate citizens who choose not to engage in a commercial activity, by forcing them to buy insurance. Never before has Congress compelled Americans, under the threat of economic sanction, to purchase a particular product or service as a condition of living in this country. After careful analysis of the individual health care mandate and the arguments of various legal scholars, I have come to the conclusion that this expansion of federal power is unconstitutional and have made a decision to join several other state attorneys general in a lawsuit challenging the individual health care mandate.
Even the Congressional Budget Office understood the unprecedented implications of this legislation when it stated: “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The federal government has never before required people to buy any good or service as a condition of lawful residence in the United States.”
As desirable as it may be for all Americans to purchase health care insurance, the commerce clause, or any other provision of the Constitution, does not give Congress the authority to compel a citizen, who would otherwise choose to be inactive in the marketplace, to purchase a product or service that Congress deems beneficial. Such an expansion of the current understanding of the commerce clause would leave no private sphere of individual commercial decision making beyond the reach of the federal government. Congress could make any citizen buy any product or service it wanted, if buying it would be commercial activity subject to the interstate commerce clause. Such an expansion of federal power would render the 10th Amendment meaningless.
I understand that many citizens of Colorado will allege that this lawsuit is politically motivated. It is not. I am not reacting to any group or constituency. All I can do is assure all Coloradans that my decision is based on my belief that the individual health care mandate is an unprecedented expansion of the power of the federal government that could undermine the rights of the states and their citizens for generations to come.