March 26, 2010

Statement of Wisconsin Governor Jim Doyle

Dear Attorney General Van Hollen:

I have received your request for permission to file an action to contest national health insurance reform. I am denying that request. This law is an act of Congress, signed by the President of the United States. The lawsuit you suggest is a frivolous and political attempt to thwart the actions of Congress and the law of the country.
Dude, harsh.

This may not be one of them, but presidents have signed plenty of unconstitutional acts of Congress before.

While the Republican J.B. Van Hollen by all appearances is pandering, any right-wing political warmth enveloping him as a result of his request to the governor is just convenient, delicious gravy. Because underneath is a perfectly defensible legal decision to go after the constitutionality of the so-called individual mandate.

In his official role, AG Van Hollen has a duty to assess federal legislation and its potential effect on Wisconsin sovereignty. I don't expect the present challenge to be successful, but far, far brighter bulbs than I have found its premises to be strongly compelling.

[By the way, stop calling them "Tenthers." The attempt to equate reasonable attention to the language of the Constitution with some crazy lawyer in California's ravings is frankly offensive. Also, conjuring the strains of Ashokan Farewell isn't much help either.]

At a listening session in hostile territory recently (Washington or Waukesha County, I forget which), U.S. Senator Russ Feingold, who supported the federal bill, was challenged on this very point.

Feingold replied that he couldn't say with any assuredness whether the individual mandate was constitutional or not, and suggested that it was the role of the courts to make that determination.

And not just as a general principle, but in this case.

Moreover, the courts cannot undertake to reach that determination until somebody asks them to, another point Feingold stressed in his response to the listening session queries.

Senator Feingold likely won't join Florida Attorney General Bob McCollum's lawsuit,* but I bet he doesn't find the question entirely without serious merit and purely political.

* As opposed to the one he joined seeking the extension of individual Second Amendment guarantees to the citizens of Wisconsin.


Jeremy R. Shown said...

You sure you're not trying to get into the Federalist Society?

Seriously, how come no one is challenging you on this? Is the counterargument really that weak?

illusory tenant said...

I guess I'm just a voice crying in the wilderness.

RobH said...

Sorry, but I have to agree with Doyle on this. Everything I've heard about the lawsuits screams "frivolous" and "purely political."

Individual mandates have long been authorized under the commerce clause on matters that affect interstate commerce as much as health care does. Medicare and Social Security, for instance. The failure or inability of large groups of people to have health coverage has a significant negative impact on commerce, increasing the costs for all the rest of us.

Although I could see the current right wing majority on the Supreme Court reverting back to its pre-New Deal roots, it would take overruling a lot more law than the few cases that dealt with the Second Amendment and corporate free speech.

illusory tenant said...

I guess basically what I'm saying is Van Hollen is entitled to the presumption that he sized up the situation and decided that, on balance, the question needs to be asked. And I think he has a duty to do that and I think that that's what his job, at a minimum, requires.

But at the same time there's no question his move reeks of politics -- his initial response raised the spectre of 'federally funded abortions' -- and I don't blame anybody for seeing it as nothing but politics, or even portraying it as nothing but politics for the purpose of forwarding their own politics. That seems to be part of the fun.

It's also inevitable when the AG is a political office to begin with (there's merit to that, especially where the AG and governor are from different parties: it's an effective check/balance and helps ensure the independence of one from the other).

Ultimately, 14 months later, I'm still baffled by this whole "controversy." The U.S. has the third largest insurance pool on Earth, next to China and India. It's dismaying that in such an advanced society people should still worry about whether they can afford to go see a doctor.

Anonymous said...

I'm only going to weigh in on the AG being a political office. My question is, why? The AG is supposed to act as the governor's (in an official capacity) attorney, right? We saw what happened when the domestic partner registry was challenged and Van Hollen refused to defend it. He claimed he couldn't defend the registry as it was unconstitutional but we all know it was on political grounds. JB has aspirations higher than AG, he needs his conservative support. So a couple questions, if the President appoints his AG, why not the governor? And, are there not enough checks/balances already on government? A bill has to pass two houses of the legislature and be signed by the gov to become law. It can be challenged by the court.
What is the point of the governor/state having legal representation if the representation cannot be counted on to represent?
I don't know about this next statement but I'll throw it out many people know ANYTHING about an AG candidate when they cast a ballot? I know, the same could be said for many positions, especially during the spring elections, but it's worth thinking about.