Paul Nitze: Scraping the bottom |

Paul Nitze: Scraping the bottom

Paul Nitze
The Aspen Times
Aspen, CO Colorado

Colorado’s attorney general wants to roll back the constitutional clock by about a century. That’s the goal of a lawsuit General John Suthers has joined, which seeks to have the “individual mandate” provision in the health care bill overturned on constitutional grounds. General Suthers joins an almost exclusively GOP crew of state AGs in taking a radical legal position that finds zero support in federal law.

For those blessed to work outside the law, this challenge might seem like small beer. Lots of people oppose the health care bill, which was the law of the land for seven minutes when this lawsuit was filed. So what’s the big deal?

The big deal is that our state is now hitched to a legal movement that goes by the moniker of “The Constitution in Exile” or, in the words of Georgetown law professor Randy Barnett, the “Lost Constitution.” It’s a movement that seeks to re-impose a constitutional straight jacket on Congress’s ability to regulate. The means? A reading of the Constitution’s commerce clause that would invalidate every major piece of domestic legislation passed since the Roosevelt administration.

“Obamacare” spurred the lawsuit, but the lawsuit really isn’t about health care. If you’re not concerned about the long-term consequences of an expanding federal government, you’re not much of a citizen. I breathed a sigh of relief when the 216th vote was cast for health care on Sunday night, but I have no illusions about our fiscal health.

We now have a starting point for controlling medical costs, but no more. Intense industry lobbying (and Republican opposition) ensured that the final bill leaned far more toward expanded coverage than cost control. It will be years before we get medical costs under control, and during the interim we are going to get absolutely hammered. That’s without even a tip of the hat to our runaway Social Security and Medicare deficits.

The problem couldn’t be in much starker relief. So, which building near the end of Pennsylvania Avenue are we going to fix it in? According to the state AGs’ lawsuit, it will be at the U.S. Supreme Court, where five (or more) justices will eventually rule that neither the commerce clause nor the taxation clause allow Congress to impose a requirement that individuals purchase health insurance.

The last time the Supreme Court tried something like this, President Franklin Roosevelt tried to pack the Court, and we had a full-blown constitutional crisis on our hands. The period leading up to the crisis was known as the “Lochner era,” when a staunchly conservative Court knocked down a variety of regulations because they violated private parties’ “freedom to contract.”

Despite dipping its toe into these waters with a couple of cases in the 1990s, the Court has never fulfilled the hopes of the radical libertarians who back the “Lost Constitution.” And it certainly isn’t going to strike down a key provision of the biggest piece of domestic legislation in decades. To do so would trigger a new constitutional crisis.

Don’t take my word for it – listen to the nearly unanimous voices of the country’s constitutional law professors. Robert Nagel, who holds the Rothgerber Chair in constitutional law at CU Law School, says General Suthers is tilting at windmills. Georgetown’s Barnett, who would love to use the courts to shrink the federal leviathan, wrote an op-ed this week in The Washington Post conceding the individual mandate is well within today’s constitutional foul lines.

Sensing some resistance, General Suthers has already started to walk this back. He’s said he’s not seeking to kill the bill, just the mandate. But the mandate is the ying to the coverage yang. He’s also said the lawsuit won’t require much staff time. But even an hour of staff time is better spent addressing the mountain of consumer fraud that this recession has uncovered (such as the Aspen couple who just pled guilty to a three-year-long fake lending scheme).

What Suthers hasn’t acknowledged is that this lawsuit promotes a poisonous political culture in which the president and the Congressional backers of health care are painted as traitors to the Constitution. At its heart, this is the same movement that wants to destroy any vestige of civility in today’s political system, and to vilify anyone who seeks the middle ground.

We are scraping the bottom when members of Congress like Bart Stupak are on the receiving end of regular death threats and the Republican Majority Leader announces that Catholic Democrats will be “run out of town” for supporting the bill. We have to find a way to stitch the polity back together and hash out our differences in good faith on the first Tuesday in November and on the floor of the House and Senate.

The bill that the president signed into law needs a lot of work. It winks at rising costs. Without Republican support to fix the cost issue, we’ll waste trillions in federal spending. We can either roll up our sleeves together, or we can fight for the Constitution in Exile.

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