'Glenn Beck': Constitutionality of Obamacare

This is a rush transcript from "Glenn Beck," March 31, 2010. This copy may not be in its final form and may be updated.

JUDGE NAPOLITANO, GUEST HOST: There are four principal constitutional defects in the health care law recently signed by President Obama.

The statute has many very odd parts to it that are all subject to challenge, like the federal takeover of student loans, the creation of a health care army which includes member of the states' National Guard and the hiring of 16,000 new IRS agents.

But the main constitutional violations address what the Congress has ordered states to do and what it has ordered individuals to do.

These unconstitutional and troubling provisions order the states to increase state taxes and spend the money collected on health care; order individuals to acquire health insurance that provides coverage acceptable to federal bureaucrats; transfers regulation of health care from the states to the federal government, and puts a federal bureaucrat between patients and physicians.

Question: Can the federal government tell the states how to spend state-generated tax dollars? In a word: no. Recall that the states formed the federal government and not the other way around. When they did so, they gave away only 17 specific powers all written in the Constitution. And they expressly retained for themselves what they didn't give away.

At the time the states formed the federal government, they were independent nation-states and the powers that they gave to the new federal government were aspects of nationhood, such as raise an army and navy to defend the country; operate a court system; provide for standard weights and measures; coin money and run a post office. These are all aspects of nationhood with which the states would no longer be concerned.

But the states retained for themselves the power to legislate for the health, safety, welfare and morality of people in the states. The federal government has no authority under the Constitution to regulate in those areas or to tell a state how they should do so.

Now, the president has argued that the power the Constitution gives Congress to regulate interstate commerce, permits it to regulate health care.

Question: When you go to your doctor, is it for a commercial purpose or is it to enhance your health?

The power to regulate interstate commerce was given to Congress so it would keep commerce between the states regular by eliminating state tariffs. It was not given to regulate purely local, professional services like visiting a doctor. Can the Congress regulate a Tupperware party? Of course not.

Since the federal government cannot tell states how to tax and regulate in the areas reserved by the Constitution to the states, since regulation of health care has been done by the states for the past 200 years, it follows that the Congress cannot order persons to purchase health insurance. The Congress can't order us to eat or to wear shoes — even though those are both beneficial to us. So, how can it order us to buy health insurance as well?

The Supreme Court has held that the most private of our conversations and thus the one most-insulated from the government intrusion are those between a patient and physician. Yet, the statute just signed by the president violates that right to privacy by requiring physicians to share private medical information with federal bureaucrats and by permitting those bureaucrats to direct the physicians how to treat the patients, you.

The government cannot run the Post Office. It can't run Amtrak. It has bankrupted Medicare, Medicaid and Social Security. Can we really expect it to manage health care?

The Congress that enacted this monstrosity recognizes no limits on its own powers. It does not take seriously its oath to uphold the Constitution and it acts like it is a general legislature that can right any wrong, regulate any activity and tax any event. That is 180 degrees from the values of inalienable rights and limited government that the Framers gave us.

The president signed this historic legislation into law earlier this week, but a new battle is beginning. As states challenge the law's legal grounds, state leaders from across the nation have argued that this law infringes on their states' rights and they're using the Constitution as their main instrument.

Joining me is now Florida's Attorney General Bill McCollum; Randy Barnett, constitutional law professor at Georgetown Law School and author of "Restoring the Lost Constitution," a terrific read; and John Tamny, editor of Real Clear Markets.

Gentlemen, welcome to "The Glenn Beck Program."

General McCollum, to you, first. Tell us about the lawsuit that you filed: What does it argue and who is it against?

BILL MCCOLLUM, FLORIDA ATTORNEY GENERAL: Well, Judge, first of all, I agree with you completely and all the 12 other attorneys general who join us in this lawsuit that the Founding Fathers never intended to give the general lawmaking powers to the federal government. They reserved only enumerated powers to the federal government. So, our lawsuit challenges the constitutionality of the entire law, but it's premised on two or three basic problems with this bill.

Number one: It's the individual mandate issue, the question of the constitutionality of requiring somebody for basically just living, for no economic activity, for not engaging in any activity for that matter, to buy health insurance policy or be fined or be taxed. That — there is no enumerated power that allows that. The commerce clause is not inelastic. Court decisions have said that and we are arguing, will argue that I think very effectively in the district court — and already, district of Florida —


MCCOLLUM: — where it's been filed and then on to the Supreme Court.

The second basis for this lawsuit is the commandeering of the assets of the state. In my case, in the state of Florida alone, for example, we're going to have to pay billions of dollars more in our state to comply with this law partly due to the fact that you're increasing rolls of the Medicaid recipients. More of them will go there, not only because they are going to be eligible, more people will be, but because of the individual mandate that will encourage more to sign up. And that's going to mean we'll add 1.2 million new Medicaid recipients to the already existing 2.7 million in Florida at this huge cost.

And then, there are, of course, the provisions that require the states without getting any refund from the federal government to set up insurance exchanges, et cetera.


MCCOLLUM: This is the largest commandeering of assets ever and we feel as states that this is a violation of Tenth Amendment and sovereignty of states under that.

NAPOLITANO: Professor Barnett —


NAPOLITANO: Professor Barnett, General McCollum uses a term of art, commandeering. Those of us who study the Constitution know that the Supreme Court has ruled that the Congress can't commandeer, take over, remove the discretion from the state legislatures.

Attorney General McCollum argues — and I was in Florida last week speaking to one of the Florida's state legislators — that they have to raise $1 billion new dollars and spend that money the way the feds tell them.

Question: Can the Congress order a state legislature to raise state taxes?

Question: Can the Congress tell a state legislature how to spend the money thus raised by those taxes?

RANDY BARNETT, PROFESSOR, GEORGETOWN LAW: Well, the bill has been cleverly worded to avoid direct commandeering. Essentially, what the bill says is that the states are going to lose their Medicaid funding if they don't do what Congress wants them to do. But the states — the bill — the defenders of the bill would say they have the option of doing what they want and then losing their Medicaid funding.

So, that's the reason why it's not a direct commandeering of the kind we've seen struck down before. But, when the — when the Congress passed a law that required or that asked states or made a condition of federal highway spending, that they raise the drinking age to 21 —


BARNETT: — the Supreme Court upheld that rule because they said it was not coercive. And the reason why it was not coercive is only 5 percent of federal highway money was going to be withheld. And that's the reason why it wasn't going to be coercive. While here —

NAPOLITANO: And because the states could have rejected the federal highway money if they want.


NAPOLITANO: The Congress — the Supreme Court said you can't have it both ways.

BARNETT: But they have — but they would only — but they would only forfeit 5 percent.

Here, the state of Florida is being asked to give up 100 percent of its Medicaid funding from the federal government if it doesn't do what the federal government wants to do. I think that the Court is going to find, or is going — is likely to find that that's pretty coercive.

NAPOLITANO: When I argue, John Tamny, that the government has bankrupted the Post Office, has bankrupted Amtrak, has bankrupted Medicaid, Medicare and Social Security, is that a simplistic argument or does it tell us that the federal government simply is institutionally incapable of managing something of this magnitude?

JOHN TAMNY, REAL CLEAR MARKETS EDITOR: It says exactly that. And the reason the federal government cannot do it has to do with the incentives. In the private sector, it is about profits. And the federal government has nothing to do with the profits. You're not judged based on profits.

So, invariably, when you enter into something big, you're going to have overruns in ways that are unprofitable and also that harm the people, because you are not judged on a daily basis by how well you serve them.

NAPOLITANO: Attorney General McCollum, can the feds just move in an area that has been regulated by the states for hundreds of years?

You know what I'm talking about: Lawyers and scholars — legal scholars call it the police power. It has nothing to do with cops. It's a constitutional phrase for health, safety, welfare and morality. For 200 years, that has been the exclusive province of the states.

Question: Can the feds just walk in and micromanage that area of human behavior, take it away from the states?

MCCOLLUM: Well, obviously, they're trying to do that, but I don't believe they can in terms of the Constitution. That's why I mentioned at the top of the show that we're talking about limited powers being given to the federal government by the Founding Fathers. The very decision that they made not to give general law-making powers that they gave to the state that states hold to the federal government was a very precise decision, and they announced it, they did it, and you termed it enumerated powers that were given to the federal government.

So, it's clear that they don't and never intended that everything that is done by states can be done by the federal government. It has to be a hook, like the commerce clause, which is then the historic hook for everything that's expanded here.

That doesn't work in this case. Nor does the tax — there is a direct tax possibility in the Constitution that requires apportionment among states. This legislation doesn't even attempt to do that. But it does and it could be interpreted as a direct tax.

So, we think —

NAPOLITANO: What will Florida —


MCCOLLUM: — that there are all kinds of things they're trying to do here wrong.

NAPOLITANO: What will Florida do? This legislator with whom I spoke in Orlando on Saturday told me that you have to raise your taxes by $1 billion. Will you do that? Will the legislature of Florida actually extract $1 billion more from Floridians and spend it the way the feds tell them to? Will this actually happen?

MCCOLLUM: Well, I personally, as a taxpayer, don't want to see that. And I suspect many taxpayers are going to tell the legislators they don't want to see that. But you have a chicken and egg there: 27 percent of our state budget already goes to Medicaid. I don't know how many people realize it's that high in their states.

But we got other things like education and we've got foster care and prisons to take care of. And we have about a $60 million — $60 billion budget, excuse me. And this is going to be a serious problem for every single state.

Are we going to raise taxes to do this? I think that's going to be a very difficult political decision in a state like Florida that has a balanced budget to decide to do that. I — you know, can you be required to do it? In effect, we can't just reject Medicaid at this point altogether as a practical matter. So, that's part of the argument we're making in this court case. It's impractical.

NAPOLITANO: Professor Barnett —

MCCOLLUM: It's very impractical.

NAPOLITANO: Professor Barnett, you know as well as anyone what the courts have let the Congress do under the commerce clause: Regulate wheat grown in a farmer's backyard that never leaves the farmer's property, so it's not commercial and it's not an interstate commerce; regulate lawfully grown marijuana in a backyard that's not — never leaves the property, it's not commercial and doesn't engage in interstate commerce.

Question: Do the courts have the institutional courage to say to the Congress, this is a line on the other side of which we won't let you go?

BARNETT: Well, the smart money is always that the Court will uphold what Congress does. But in this case, if this bill turns out to be wildly unpopular and in fact one or both houses of Congress flip party as a result and perhaps there is a repeal move in both houses that's vetoed or is subject to a filibuster in one house — I think the Court may feel differently. It may have more courage to actually enforce a line in the Constitution.

And remember, Judge, that this is something that even that goes beyond the medical marijuana case, where I was the lawyer for Angel Raich in the Supreme Court. This goes beyond that case. Never before in the history of the country has the commerce clause ever been used to mandate that a private citizen, just by virtue of being alive, has to enter into a commercial relationship with a private company.

And anything that's never been done before lacks precedent. It means the Supreme Court has never directly validated this claim of power before. And if this bill turns out to be as unpopular — continues to be as unpopular as it has been — I think the Supreme Court just might have the courage of its convictions here.

NAPOLITANO: The Congress acknowledges, John Tamny, that it is going to cost — I'm going to say — $1 trillion, $948 billion. What's a few billion here, a few billion there the way these folks throw money around. But at the same time, they claim they are saving money.

Now, can you even fathom their argument that by spending a trillion of taxpayer dollars they're saving money?

TAMNY: Oh, I think it's good politics, but we know that it's not going to happen. And what I like about what's happening right now when these companies writing down their earnings is this is the wake-up call to all the people that thought that a government that had no resources to basically give something out for free. It turns out to be that the businesses are going to take big write-downs, which means they can't expand, they can't create jobs. Americans who want jobs will pay dearly for this health bill.

NAPOLITANO: Professor Barnett, will court preserve us from the tyranny of the majority? The president keeps saying we won the election. This is what the elected has to do. It's a policy decision for legislative branch and not for the courts. But the whole purpose of an independent judiciary, I submit, is to protect us of the tyranny of the majority. Otherwise, nobody's liberty or property is secure.

BARNETT: Well, I agree with you about that and I commend Attorney General McCollum for bringing this lawsuit. And I think the lawsuit has great merit.

But I don't think that the American people who do not like this bill should put their faith in the courts to save them. I believe that political action of the kind that everybody is talking about is going to be necessary. And you just cannot count on the courts to do this. I would say, people who oppose the bill should not count on the courts to save them. And people who support this bill should not be 100 percent secure that the court is going to uphold it.

NAPOLITANO: General McCollum, are you confident that the court will interfere here or do you think it is more likely that a Republican Congress elected in 2010 and maybe in 2012 and a Republican president in 2012 will get their hands on this before the courts do?

MCCOLLUM: Well, of course, it's a lot simpler for the Congress to go and act and change — make changes in principle. But the fact is, you got to have potentially supermajority to go reverse this, in the Senate at least. And we know that this is going to get to Supreme Court in a couple of years, hopefully on an expedited path.

And I'm very confident that our arguments are going to prevail at the end of the day. There may be bumps on the road here and there. There are a lot of technical issues here. But this is fundamental — this is one of the most fundamental cases ever brought before the Supreme Court or the courts of this country on the separation of powers. And on the powers of the states that attorney generals historically defend in smaller ways every day in our court system than the intrusion of the federal government. But this is far beyond anything ever done before.

So, I actually believe that at the end of the day, we're going to have a majority. We're going to have at least a five to four decision in our favor. We have to get there first.

NAPOLITANO: I got to tell you, I'm optimistic as well. And as someone who watches the Supreme Court for a living, I am very happy that you filed this litigation.

Attorney General Bill McCollum, Professor Randy Barney, John Tamny — thanks for joining us.

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