The Cognitive Dissonance of North Dakota (yet another health care thread)

N. Dakota is peculiar in its politics. According to Wikipedia, the Republican party has held the Governor’s office since 1992 and they traditionally vote Republican in the presidential election, including 2008. However, Democrats have held their Senate and single Congressional seats since 1982 and their federal delegation has been Democratic for the last 24 years.

The Florida AG recently announced the nine states joining Florida in their lawsuit against the U.S. over the health care reform bill. North Dakota is included. Having never visited the state, came as quite the surprise to me to learn that their very own elected representative in Congress voted ‘Yes’ for the bill. Upon further investigation, it would appear that both Senators support health care reform, although to varying degrees (excluding the public option for at least one of them: Conrad, which is irrelevant to the current reform bill).

Despite these contradictions, my immediate take is that North Dakota constituents have voted in favor of health care reform given their choice of congressional delegation, which given it’s history is not a fluke. Is this a fair assessment?

So, how does the also-elected Republican AG resolve the clear contradiction of a state that approves legislation and then sues over the passage of that very legislation?

Help me understand this.

Perhaps the North Dakota AG feels that the law compels his action. Perhaps his calculation has nothing to do with what the citizens of his state voted for.

And why would it? Do we expect an elected Attorney General to enforce the laws, to to enforce only those laws politically popular?

Now, a better question would be, “If the North Dakota AG believes that the law compels this action… why?” Hasn’t overreaching Commerce Clause power been in place since FDR? Isn’t it about seventy years too late to start challenging this expansive reading of the Commerce Clause?

Is it safe to assume that it’s the duty of the AG, if he believes the bill is unconstitutional, to inform the representatives charged with evaluating whether the bill should become law? Would it be too much to ask the AG to provide information showing he has performed that analysis and worked with the state’s federal congressional delegation to ensure the Constitution is upheld?

The state AG doesn’t work for the federal Congressional delegation, and the delegation has no obligation to listen to him. These are people fulfilling different roles in different systems.

Given that all of the AGs signing on to oppose HCR are Republican and given that 40 of the 50 state AGs do not feel compelled by the law to oppose HCR it is hard to see this as anything other than political.

I imagine that he felt that duty was fulfilled when he publicly announced, prior to the bill’s passage, that he was part of the ten-state coalition vowing to file suit.

Maybe, but this is why we say that correlation is not causation.

It may be that those who believe the bill is unconstitutional are those who ascribe to an originalist reading of the Constitution. if that’s the case, it’s easy to see why they’d be (a) Republicans, and (b) of the belief that this measure violates Congerss’ Article I powers.

In other words, it may not be, strictly speaking, political. The same interpretive viewpoint may be at the root cause of both the political party membership and the conclusion at issue here.

And for what it’s worth… I agree that in an originalist reading, this is not constitutional.

But that ship has sailed. We have a bulwark of caselaw based on 70+ years of a more expansive Commerce Clause reading. If I were a Supreme Court justice in 1930, I probably would have voted to strike down FDR’s initiatives. But now, as poor a public policy as I believe them to be, the fact is we’re stuck with them.

So by any reasonable approach, I believe this bill is constitutional. Poor public policy, but perfectly constitutional.

I think that is true for the vast majority of the bill, except for the individual mandate. There isn’t an exact parallel with this anywhere in law as far as I can tell, and while the tax power is considerable there are limits to it.

Do you not see any line crossed between the regulation of commerce and the requirement for mandatory engagement of commerce, constitutionally? I agree that Congress has stretched the Commerce Clause well beyond what it was supposed to do, trying to use it to regulate violence against women and other claptrap (not that I condone violence against women, you get my gist here).

In 1995, US v Lopez, the Supremes overturned a Gun Free School Zone law, which relied on Commerce Clause, as a bridge too far:

From my perspective, the power to regulate does NOT equal the power to mandate. Or to put another way: would it be constitutional to pass a law requiring all American citizens to buy a car from GM? If not, why not? What’s the difference, constitutionally speaking?

Peculiar is right. There is also a tradition of progressive/radical politics in the state that has some roots in farming issues. It does look as if a Republican is likely to win a Senate seat from N.D. in 2010.

Questionable, since a poll cited in the above link finds only a 39% approval rating for Obama in the state.

It’s reasonable to conclude that this is political maneuvering. History indicates that Republican outrage over alleged over-reaching by legislatures or courts is highly correlated with whether Democrats or liberals are involved.

With politics, the “smell” test is far more applicable than “correlation does not equal causation”.

You have brought this up elsewhere and despite numerous responses you cling to this.

Imagine the government decided to raise everyone’s taxes, across the board, by $1,000 and if you buy health insurance you get a $1,000 tax credit. If you buy property today you get tax credits and I presume you are fine with that.

To me you arguing this point is akin to a math teacher getting bent out of shape because their student wrote “2+1=3” rather than “1+2=3” despite there being no functional difference.

And the government is not telling you to buy GM. The analogy would be more accurate to say you must buy a car of your choice. That analogy however only goes so far. A car is not the same kind of thing that health care is. You may choose you do not need a car. However, it is a near certainty you will need health care in your lifetime. No one “chooses” to obtain health care. They get it when it is needed because it is a necessity (they are sick or injured). As such it is not of the same kind of economic activity that deciding to buy a car is.



Your previous posts answered his objection correctly and completely. But this extra bit, tossed in to help your argument along, actually does nothing to assist it. Where in the Constitution does it say that the government can only tax you to further a goal that is “necessary?”

If it’s conceded that the taxing power can be used to tax a person who does not have healthcare, then the courts are constrained in their ability to look into Congress’ motives. Sonzinsky v. United States.

Well, I refuted your linked paper yesterday in the other thread and notice you never responded, so…

As for there being ‘no difference’… I disagree. If they wanted to do it constitutionally, they could have. They didn’t want to take the political hit for raising taxes like you describe, so they decided to do it unconsitutionally. Hence, it should be struck down.

As for cars and healthcare being different… I agree. That’s why I said, from a constitutional standpoint, what’s the difference.

Edit to add: let me make it easy for you

The General Welfare Clause.

What could be more laid at the feet of “general welfare” than that which is necessary to its citizens?

So in your mind, the power to regulate commerce = the power to compel commerce? Even the non-partisan Congressional Research Service says

If you’re interested, it’s from Jennifer Staman & Cynthia Brougher, Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis, Congressional Research Service Report for Congress, July 24, 2009

You attacked the source and not the argument made (ad hominem attack). That is fine to an extent showing that the source may have a bias but their argument remains. I think Rush Limbaugh is a hyper-partisan wank who is not to be trusted but if he said Obama is a democrat he would be correct despite my distrust of him.

You then nitpicked one aspect of a document that looked at multiple aspects bearing on this issue. Perhaps that one part is not sufficient but taking it all in aggregate removing that one piece does not necessarily render the rest moot.

As such I did not find your rebuttal compelling.

The preamble of the Constitution does not confer any rights on the Federal government; it merely states the purpose of the Constitution. Further, there’s some pretty good research out there that shows that Welfare, in this context, was used in terms of the welfare of the various States, not individual citizens within those states.

As one researcher puts it:

Honestly, I appreciate the link, I really do. But if you re-read what I said, nowhere in the paper does it actually provide evidence that the Commerce Clause can be used in this new-n-improved way. It talks in circles about how great universal coverage is, then says that it’s ‘settled’ that it’s constitutional. If you find some precedent or evidence that proves otherwise, please provide the page #… after all, I read through all 20+ pages of the dern thing! :smack:

I didn’t mean it as ad hominem when I called their motives into question - but it’s important to know which side of the fence an analysis comes from, I’m sure you agree. You’ll notice I never post anything on these boards from Newsmax or Townhall… or HuffPo or Kos. The source info cannot be trusted.

If they had provided the proof they claimed they had in their exec summ, then I’d have given them that credit.