C ARMEN R. R OWE H OOGKAMER THE U.S. CONSTITUTION & HEALTH CARE

What are the issues? Lack of Constitutional Authority under Article 1 (commerce clause, tax & spending clause) Depriving States of control over budget process (unfunded mandates in bill) = deprives states of sovereignty (Article IV, Sec.4) Violates 10th Amendment rights (states/state employees agents of Federal Gov’t without Fed pay) Tax penalty for failure to insure violates Art. 1 Secs.2 & 9 (tax apportionment, relation to activity) Tax penalty for failure is violation of States’ powers under 10th Amendment, outside constitutional grant of authority to Congress.

1. Lack of Constitutional Authority under Article 1 First: Tax & spending clause Article 1 - The Legislative Branch Section 8 - Powers of Congress The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposes and Excises shall be uniform throughout the United States.

1. Lack of Constitutional Authority under Article 1 Second: Commerce Clause Article 1 - The Legislative Branch Section 8 - Powers of Congress To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. Here, forces people into commerce, does not simply regulate. Regulates inactivity, not just activity. Plus pays to private company.

2. Depriving States of control over budget process (unfunded mandates in bill) = deprives States of sovereignty (Article IV, Sec.4) Article IV, Sec.4 The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

What is “Republican” Government? “Guarantee clause” – battle of Federal v. State powers. The Constitution does not explain what constitutes a republican government. Federalist Papers give us an insight as to the intent of the Founders. A republican form of government is distinguished from a pure democracy, which the Founding Fathers wanted to avoid. James Madison wrote in Federalist No. 10: "Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”

What is “Republican” Government? Not a judicial concept – up to Legislature to define (1840s) The guarantee of a republican government has been asserted to prohibit the use of direct democracy procedures in the states. The use of the initiative, referendum, and recall are all tools of "direct democracy," that allow the electorate to exercise legislative power independently from their republican representatives. Again, a Congressional decision – not judicial.

“Republican” Late Judge Cooley, in his Principles of Constitutional Law: "By a republican form of government," he says, "is understood a government by representatives chosen by the people; and it contrasts on the one side with a democracy, in which the people or community as an organized whole wield the sovereign powers of government, and, on the other side, with the rule of one man as King, Emperor, Czar, or Sultan, or with that of one class of men, as an aristocracy."

3. Violates 10th Amendment rights 10 th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Argues that forcing states & state employees to act as agents of Federal Gov’t without Fed pay violates State soveriegnty.

4. Tax penalty for failure to insure violates Art. 1 Secs.2 & 9 (tax apportionment, relation to activity) Article 1, Section 2 (in part): Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons

4. Tax penalty for failure to insure violates Art. 1 Secs.2 & 9 (tax apportionment, relation to activity) The problem: Not a tax, it’s a fine. Fines not part of Congressional powers. If you comply, money goes to private company. You pay government only if you do not comply.

4. Tax penalty for failure to insure violates Art. 1 Secs.2 & 9 (tax apportionment, relation to activity) Article 1, Section 9 (in part): No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

5. Tax penalty for failure is violation of States’ powers under 10th Amendment. 10 th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Outside constitutional grant of authority to Congress.

5. Tax penalty for failure is violation of States’ powers under 10th Amendment. “Further, the Act converts what has been a voluntary federal- state partnership into a compulsory top-down federal program in which the discretion of the Plaintiffs and their sister states is removed, in derogation of the core constitutional principle of federalism upon which this Nation was founded. “In doing so, the Act exceeds the powers of the United States and violates the Tenth Amendment to the Constitution. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Outside constitutional grant of authority to Congress.