Legal attacks on health care reform preposterous, hypocritical

March 23, 2010

Perhaps we should no longer be surprised by the incredible hypocrisy -- and lack of historical memory -- of today's political conservatives. Unable to block health care reform through congressional process, they now have sought nullification of federal law in various state legislatures -- the same obstructive means which led to the Civil War, when southern states sought to "nullify" Lincoln's anti-slavery measures. They also threaten litigation in the federal courts to have all or portions of the new health care law declared unconstitutional under the Tenth Amendment, which reserves to the states those powers not granted by the Constitution to the federal government.

These "strict constitutionalists" seem oblivious to the last 30 years of constitutional history, during which the Reagan and both Bush administrations avidly promoted the legal doctrine of "federal preemption." Under that doctrine, state laws were declared invalid when they attempted to regulate an area of commercial or related activity where the Congress had already legislated.

Ironically, Maryland lawmakers during the last decade were blocked at least twice from pursuing progressive health care reform because preempted by federal mandates. Our 2004 state law requiring large companies to provide a minimum level of insurance for their employees was held by a Reagan-appointed federal judge to be preempted by the federal ERISA laws. And the Bush administration denied Maryland a waiver required under overriding federal law to negotiate prescription drug prices for our low-income residents. Now that the Democrats are in the driver's seat, it appears that the view of these so-called conservatives has changed by 180 degrees.

However, no less a (genuine) conservative constitutional scholar than Charles Fried -- President Reagan's solicitor general -- has declared as "preposterous" these new Republican efforts to mount a legal attack on national health reform legislation enacted by the Democrat-controlled Congress. Mr. Fried has declared that he is "left speechless by the absurdity" of these arguments -- which he refers to as mere "political theater." Mr. Fried points out that when he was Mr. Reagan's solicitor general, he "defended tons of laws" which imposed similar or stronger mandates than the health care bill -- citing the IRS laws, draft laws, environmental restrictions and the like. These mandates, imposed by Congress on both the states and their citizens, almost without exception have been upheld by the courts in response to similar constitutional challenges.

Michael A. Pretl, Riverton

The writer is counsel to Maryland Health Care for All.

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