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March 24, 2012

FLASHPOINT: The Constitutional challenge to the Affordable Care Act

INDIANAPOLIS — On March 26, the United States Supreme Court will begin three days of hearings with six hours of oral argument on the constitutional challenge filed by Indiana and 25 other states against certain sections of the federal health care law: the Patient Protection and Affordable Care Act, often referred to as “Obamacare.” This historic lawsuit will explore the limits of the power of Congress under the U.S. Constitution.

There has been remarkable public interest in the landmark legislation and the legal challenge that has ensued, and Hoosiers have raised fundamental questions regarding the proper role of the federal government. As Indiana Attorney General, I have an obligation to defend state statutes passed by the Indiana General Assembly from legal challenges; but here I have taken the unusual step of challenging a federal statute. The people of Indiana deserve an explanation of why the challenge has been necessary.

Most of the public attention on the case has centered on the “individual mandate,” by which Congress for the first time in our nation’s history required that almost everyone in the United States purchase a commercial product: private health insurance. This mandate exceeds Congress’ powers under the Constitution, and if left unchecked it will be enforced in 2014 with a $685 fine on the federal tax form of each noncompliant taxpayer. It has been found unconstitutional by the Federal District Court and 11th Circuit Court of Appeals in the case the 26 states brought.

The plaintiff states also argue that Congress’ geometric expansion of Medicaid coerces states into enforcing federal policy in violation of the Tenth Amendment. These issues required Indiana to join the challenge since they threaten to redefine federalism — the distribution of powers between the federal and state governments — long into the future.

I admit to a bias in favor of states’ authority, as might be inferred from my role representing Indiana. But even when I worked in the federal government, my views always favored individual liberty and limits on federal power and the defense of state prerogatives. In providing limited, enumerated powers to a federal government, our nation’s Founders had grave concerns that a central government would assume greater authority at the expense of individual liberty and state sovereignty. They concluded individual liberty was better preserved by allocating the bulk of government power to smaller institutions closer to the people: states.

In its legal defense of the Affordable Care Act in the lawsuit, the federal government thus far has failed to satisfy the federal courts that it has stayed within its constitutional limitations. Some defend the Affordable Care Act based on the acute need to reform our health care system. Some kind of health insurance reform surely is needed, but invoking the plight of the uninsured misses the point of why I joined in the legal challenge. No matter how great the need for reform, we must respect the constitutional limits of federal power, if our liberty as Americans is to endure for future generations.

While it is not my role to determine the constitutionality of the federal statute, it is my role to raise the question so that the Supreme Court can make that determination with finality. And the Court’s decision-making process will begin during three historic days in March.

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