Ohio AG Richard Cordray Shoots Down "HCR Is Unconstitutional" Meme

If there's anybody out there who I'd trust to make an informed legal opinion on the Constitutionality of any given bill, Richard Cordray is that guy. The man's brilliantly smart and well-versed in the law. And don't think I'm just saying that because 1) He's a Democrat, 2) He's my wife's employer, and 3) His wife was one of my Law School professors. This should be kept as a handbook for how to shoot down the right-wing argument that HCR is unconstitutional.



Ohio Will Not Challenge Health Care Law
Lawsuits have no legal merit, Attorney General Cordray says


(COLUMBUS, Ohio) — Ohio will not join other state lawsuits filed to prevent implementation of H.R. 3590, the Patient Protection and Affordable Care Act, Attorney General Richard Cordray announced today. "Based on my review of Ohio law and H.R. 3590, and my experience with federal constitutional law, I do not believe that the lawsuits filed against the Patient Protection and Affordable Care Act have any legal merit whatsoever," Cordray said. "As a result, I believe it would be a waste of taxpayer resources for Ohio to join any such lawsuit, and we will not be doing so."

Cordray said he drew upon his experience as an appellate lawyer and law professor to research the request and make his decision. "I had the good fortune to clerk for two United States Supreme Court justices, Byron White and Anthony Kennedy. These justices – appointed by Presidents Kennedy and Reagan, respectively – each taught me to review constitutional challenges to federal laws with great care, always keeping in mind the proper balance of power between the states and Congress within our federalist system. In turn, I tried to convey this same respect for federalism to my students during 13 years of teaching constitutional law at The Ohio State University Moritz College of Law. I have also encountered such issues in some of the seven cases I have had the privilege of arguing to the United States Supreme Court."

Cordray addressed the two constitutional claims raised in the lawsuits:

Commerce Clause: "For 70 years, the U.S. Supreme Court has read the Commerce Clause broadly to authorize Congress to address our most pressing national economic concerns. In fact, during George Washington's first term as President, under the Second Militia Act of 1792, Congress explicitly required many Americans to make an economic purchase: of a gun, ammunition, gunpowder and a knapsack to be properly prepared for military service. In the health care law, the individual mandate is inextricably intertwined with the comprehensive economic approach that Congress adopted to fix the deep flaws in our current health insurance system, which affects one-sixth of the American economy."

Tenth Amendment: "For those who contend that the states alone can address insurance problems, the logic of their position is that we are condemned, forever, to an unsatisfactory 'patchwork quilt' of conflicting provisions and mixed results. This is precisely why our Founding Fathers rejected the anemic Articles of Confederation as inadequate, authorized Congress to legislate on matters of interstate commerce, and then made its laws supreme, notwithstanding any state laws to the contrary.

"Nobody can seriously argue that the health care industry operates only in 'intrastate' commerce, and the mandate provisions in this bill cannot be effectively disentangled from the comprehensive economic approach that Congress adopted to fix the deep flaws in our current health insurance system.

"Critics of the new law argue that the Tenth Amendment does not permit Congress to require states to establish insurance exchanges. But the law does not require that; it provides the states with a choice, and if they decline, the federal government will take on that responsibility. Just as Medicaid is a voluntary federal-state program whose constitutionality has been upheld by the courts, the health care reform law is entirely consistent with the Tenth Amendment.

"In these difficult budget times, I do not believe in wasting taxpayer dollars to pursue political agendas through symbolic lawsuits, which only deplete our limited resources, as well as those of our courts. Instead, the Ohio Attorney General's office will continue to focus on our efforts to protect the financial security of Ohio families by holding Wall Street accountable and helping to level Ohio's economic playing field."

Cordray shared his response with Ohio's Republican congressional delegation and state senate caucus who wrote to him last week urging him to join the federal lawsuits against H.R. 3590. To read the response in full, visit http://www.OhioAttorneyGeneral.gov/HealthCareResponses. To read the letters Cordray received from each group, visit http://www.OhioAttorneyGeneral.gov/HealthCareLetters.

I applaud his decision...

Good for him!

That's the way the Republicans always argue constitutional issues- that the federal government doesn't have the power to implement its laws to begin with. It's very predictable and he seems to be aiming his letter at them.

But he's not responding to the arguments that this law unconstitutionally infringes on the rights of individuals- i.e., the equal protection/substantive/procedural due process argument, which is the one that works.

How exactly the Constitution is being violated by this legislation.

It's also pretty funny that Obama is a constitutional scholar and Harvard Professor and was politically saavy enough to become the first African American President, yet somehow they assume he's too stupid to realize his signature legislative accomplishment would be unconstitutional. Yes, he's that stoopid. :eyes:

.........Richard Cordray is a former Jeopardy! champion (he was on when they only let you win 5 times in a row, so he got booted out after 5 days as the Champion). My boy is kinda bright.

"For 70 years, the U.S. Supreme Court has read the Commerce Clause broadly to authorize Congress to address our most pressing national economic concerns. In fact, during George Washington's first term as President, under the Second Militia Act of 1792, Congress explicitly required many Americans to make an economic purchase: of a gun, ammunition, gunpowder and a knapsack to be properly prepared for military service. In the health care law, the individual mandate is inextricably intertwined with the comprehensive economic approach that Congress adopted to fix the deep flaws in our current health insurance system, which affects one-sixth of the American economy."

I pointed to that as one of the reasons why this did not pass muster...

There are days...

Because some round these parts didn't like that answer... mostly cannot connect constitutional dots.

Oh and boys and girls that goes to the holy grail of RIGHT WING... this is Original Intent.

Oh, sweet irony.

"under the Second Militia Act of 1792, Congress explicitly required many Americans to make an economic purchase: of a gun, ammunition, gunpowder and a knapsack to be properly prepared for military service"

Were they ordered to "purchase" the supplies or just have them readily available? Pretty basic stuff for that time.
What was the penalty, tax, fine or whatever for NOT making this purchase?

Ohio's been quiet on that front lately, though. Thanks, Texas! ;)

It did not require a cradle to grave relationship with an industry, where money would be constantly siphoned out of the family finances. Once you have a gun for every male of teenaged years or above, all you have to do is keep the guns in good condition and replenish bullets. This in no way is 15-10% of your family finances from birth to death.

It's a misleading argument in scope and intention of law.

counselor...

That is what this is going down to,

corporations are persons?

not an actual court decision.

In fact, if anything the Founders hated Corporations and wanted them quite regulated. It had to do with the East India Tea Company, which had the monopoly right over tea to the colonies.

The one just passed by the Supreme Court removing all limitations on the use of corporate funds for issue advocacy as the latest example?

which is a favorite of the RW, except when it is and it does not go well with what they want to push.

There were like over 100 years and four generations from that decision to the actual ratification of the Constitution.

In fact, due to original intent I am sure a few of the founders would shake their heads if they READ how that decision has been used to turn around the original system of corporate control they set. This included silly shit like corporations only lasting the life of the founder, and with very limited goals. For example if you were formed to build a bridge, at the end of that construction and your profit years, your corporation was dissolved, no ifs or buts.

The modern corporation (think of the Morgans et al) comes from the post civil war period.

the Commander in Chief President Washington.





That's a different ball game than requiring every civilian citizen to support a for profit industry.

a lawyer, like oh the Solicitor General, will refer to that act as case law, and precedent. Mostly this is the route the cases at the state level re Auto Insurance went.

for auto liability insurance and that of requiring "health" insurance.

1. You put the public at direct risk whenever you get behind the wheel.

2. Only people driving mechanized transportation are required to purchase liability insurance.

3. The states mandate auto insurance, not the federal government.

Honestly I believe the Supreme Court will uphold the mandate even if it violates the First Amendment because this SC is a strong advocate for corporate supremacy.

in challenges.

There is legal precedent for the Feds (and states) ordering individuals to procure goods from the private sector.

Oh and there is one more thing, I could make an argument based on PUBLIC HEALTH that those people who do NOT have insurance drive the cost of care up, and put people at risk. This is the exact same argument that gives governments the authority to order you to quarantine if you got an infectious disease. Yes people do not realize the extent of the authority during a declaration of a public health emergency.

You'll see, this argument you are making will be made, by the Right Wing, assuming this is not even thrown out on lack of merit in lower courts, at the USSC level. And the argument I made, will be one of the many used by the Solicitor General of the US.

There is a lot of precedent.

And that is why I laugh my ass off every time I hear the RW (and the LW) scream this is Unconstitutional. Instead I'd start working in the pressure that will be needed for the inevitable reviews. Hell, the way this was passed. it will need a review in TEN YEARS. So I'd get ready for the next review and inevitable changes, and start putting pressure now for the kind of PROGRESSIVE changes I want to see. And by the way past is prologue, this is the way these entitlements evolve.

and also, again, do not require the year-after-year purchase of a product, merely the use of one.

and that is the point that even the AG of OH gave you.

Like or not, they have no case.

you operate a motor vehicle, and federal required "health" insurance for living and breathing, there are major fundamental differences between right wing and left wing criticism of this law.

While this law will be unpopular across the board it will be so for different reasons.

RW criticism at the base is largely based on ideology against financially imposed mandates period and a distrust against government.

RW criticism from their leadership is just for public consumption, as cynical, political, partisan means to appeal to their purported base; the average Republican. However the leadership of the Republican Party is a wholly subsidiary of corporations and this is where their true allegiance lies, just as Bush; once proclaimed to a roomful of mega-wealthy supporters, "You are my base."

The Republican leadership's true clients; for profit "health" insurance corporations; grip on "We the People's" government will strengthen with time as the U.S. population grows so will the pool of profit; available to them for future bribing and lobbying of a fixed 535 members of Congress along with advertising commercial money for the corporate media.

In private the RW leadership are as happy as pigs in slop, mandates without a strong national public option as a minimum was first proposed by them, Nixon Republicans came out with something like this, for all practical purposes this is Romney Care, even President Obama said as much.



LW criticism is based on the idea that health coverage; is a "general welfare" issue, should be solely in the domain of the federal government and non-profit, financed by upfront progressive taxes as opposed to adverse, illogical, dysfunctional back door taxes to a "particular" entity determined to take advantage of the paying people at every turn, using their own money against them.

Furthermore the U.S. has veered dangerously to the extreme right especially over the past half century in large part because the corporate media have been enthusiastic to report any right wing criticism, while left wing criticism has been demonized, distorted or ignored altogether.

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that you buy a product from private enterprise. This one you can make a direct and good case. It was signed like by the FIRST PRESIDENT and proposed by a CONGRESS with many members who WERE at the Constitutional Convention.

Unlike many a times when the RW screams original intent. you can actually make a case here... a clear case.

That should be the question.

If the government can mandate that you buy a single item (gun) and accessories to that item (ammunition), that is one thing and it does not create a permanent, lifelong, financial relationship with the gun industry. Guns last a long time, can be passed down, and are a relatively small part of the budget over time.

But nowhere did Washington mandate that you buy a new gun every month from cradle to grave for every member of your family, requiring a permanent relationship with the gun industry and a huge burden on the family budget from one generation to the next, with no way to pass anything down.

Further, it did not require that you buy a gun whose properties were not known or up for legal debate, as the provisions of health insurance are right now.

It is the NATURE of the mandate that should be up for debate. I hope they go there.

we've been down this road at the STATE level. See all the litigation over mandated car insurance. Those are also precedents.

Simply required households keep an item that virtually everyone already had. Colonial America was a dangerous place. You wouldn't find a household without firearms.

There also was no penalty or fine for non-compliance. Congress never made any attempt to enforce or even check enforcement of the statute.

It was a way for the first Congress to act like they were a "real country". See world, we have an Army. We are a real country and not some rebellious colonies.

to the early 20th century we know that guns were NOT that common, not even in the frontier.

This is one of those myths of US History

Also that is plain silly.
Did we beat the British with bows & arrows?

Just because something wasn't in a will doesn't mean it didn't exist.
Wills rarely name every item of property. Using language like my home and all contents are willed to my loving wife can be used to cover a block of personal possessions. Unless a person felt the need to bequeath firearms to a specific person (separate from the majority of property) there would be no reason to list it separately.

There may have been no "gun culture" but that was simply because firearms were an accepted aspect of life. A large portion of food was via hunting. Most households have a firearm for protection, for hunting, and if needed to participate in militia.

and one of the problems the Colonial Armies had was securing guns and ammo. These problems ranged from just long arms and ammo to cannon. Not every man provided for their own you know. Why this law was passed.

By the time 1812 came about though we already had a STANDING army. You know REGULAR ARMIES do provide guns and ammo. Granted, in 1876 a soldier was provided three rounds to practice for the whole year, for example... this modern emphasis on marksmanship goes to the mid 1880s.

But this is where the myth of the minutemen comes from. No, not the act, the myth that guns were that prevalent. They were not, and for damn good reason if you were the Colonial governor, for example.

And no, not all households had a gun. As I said, from WILLS, you know the best PRIMARY evidence we have as to who had what, guns were not that common, because they were EXPENSIVE, That said, when they were passed down, they tended to go to the oldest SON, and were taken care off very lovingly because of their value. To the point that there are wills with Kentucky Long Rifles being passed down all the way to the early 20th century. Now think about that one for a second. And there is also a tradition in certain areas that guns are still passed from father to son, see the back country of Kentucky for example.

By the way knives and axes, as well as other working implements were given almost the same status as guns, if not the same in a few cases.

The current gun culture though relies on the myth, not in the reality, but that is another matter.

Maybe compared to today where we have massive amounts of disposable income but a firearm was modest sum of money even as far back as civil war (horse costed more than a gun in late 1800s). They were more expensive in colonial era but not prohibitively so.

Families were multi-generational. A father often would pass on equipment, tools, horses, even home long before he died. It was a more effective use of resources. There was no need for these "working tools" to be recorded in a will or trust because they would have already transferred ownership prior to death.

Unfortunately there are few historical record however we do have one from Boston.



This is from Heller v. DC. Original citation is available is you want to look up transcripts. In 1765 Bostons population was 15,520. If we figure average household was 4.5 person (which is comparable to time period) that would be about 3400 households. 2450 weapons in 3400 households. Of course many of the patriots returned to Colonial Army after the "deal" it is unlikely all weapons were turned in and a substantial number were smuggled out of Boston. Still even in 2450 that shows a relatively high rate of ownership of firearms.

This was in Boston which was a rather developed city at the time. Firearm ownership in rural American was even higher. By the end of revolutionary war The American Army by historical account was at least well equipped when it came to firearms (although heavy cannon were still a problem). The Army disbanded after treaty of Paris and there men took the weapons home to their households.

nor that common... but as I said that's ok.

Myth and history are not the same thing

Here you go and welcome to the controversy

http://www.historycooperative.org/cgi-bin/justtop.cgi?act=justtop&url=http://www.historycooperative.org/journals/wm/60.3/churchill.html

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=692421

Congress is EXPLICITLY granted the power to "raise and support armies" in the constitution.
Requiring any such members of a militia to be ably armed would certainly fall under creating laws to "support armies".
Congress has the power to mandate readiness related to raising and supporting armies. (They also had the power of conscription).
Furthermore, the act does not mandate "purchases". It only mandates being equipped with the items.
Insurance is not durable good... it MUST be purchased by yourself or a policyholder ad infinitum.

In the constitution, the congress basically only has the power to TAX for the general welfare (Single Payer or Medicare for all).
There is a difference between dollars (I'm required to pay) going to fund a gov't program or increase corporate quarterly profits.

The question is not whether congress has the power to mandate anything. Sure they do - they mandate things all the time.
The question is about constitutionality of HCR insurance mandate. What gives congress the power to mandate the purchase (for general welfare)?

Paying an amount of money (determined by a non-representative corporation) to buy products from a private corporation...
I'd like to see that played out in the Supreme Court --> Checks 'n' balances and all that jazz...

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when this is argued in court, assuming it even gets there. there is a LOT of precedent, and a few of them lead to Original Intent.

By the way, on a PUBLIC HEALTH argument, used usually in infectious disease. yes they can mandate it. Of course I am going more afield, but given how many laws that mandate things that have been challenged and found to be ahem constitutional unless they break the rules of precedent...

a militia.

Etc. Etc.

According to the AG:
And back in George Washington’s first term as
President, under the Second Militia Act of 1792, Congress explicitly required many Americans
to make an economic purchase: of a gun, ammunition, gunpowder, and a knapsack to be properly
prepared for military service. In the health care law, the individual mandate is inextricably
intertwined with the comprehensive economic approach that Congress adopted to fix the deep
flaws in our current health insurance system, which affects one-sixth of the American economy.
The same mandate provision is part of the health care legislation enacted in Massachusetts, and it
also was originally a component of the Wyden-Bennett bill supported by many Republicans who
now contend that it is unconstitutional. These contentions have no legal merit unless activist
judges, of the kind you normally deplore, were to tear up decades of settled jurisprudence



Dear AG, Congress did not enact the militia act under the Commerce Clause, but under the power entrusted in them under the militia clauses of Art1, sec8.

Direct taxes such as the HCR mandate are forbidden under Art1, sec9, c4. Congress could have accomplished the funding through an income tax authorized by the 16th amendment but they chose otherwise.

Just an FYI.