While more than a dozen state Attorneys General plan to challenge the individual mandate of ObamaCare in court, Minnesota’s Lori Swanson has a different idea. She plans to defend the expansion of federal power by filing amicus briefs on behalf of the Obama administration. This puts the Minnesota Attorney General on a collision course with Governor Tim Pawlenty, who pledged to find another way to fight the mandate:
Minnesota’s Republican governor and Democratic attorney general are locked in a clash of wills over the national health reforms that have sparked political confrontations across the country.
On Monday, Attorney General Lori Swanson responded to Pawlenty’s request that she consider having Minnesota join other states in suing the federal government. Swanson not only declined, but informed Pawlenty that she will file a friend-of-the-court brief defending the new health care law.
She pointed out in her letter to him that Pawlenty can always file his own friend-of-the-court brief to side with the states fighting the law.
That prompted this response from Pawlenty spokesman Brian McClung: “Governor Pawlenty intends to participate in this litigation.” He refused to comment on whether the governor would file a friend-of-the-court brief supporting lawsuits filed by other states, hire his own lawyer or participate in some other way. “We are going to consider our options,” McClung said in an e-mail.
Swanson, a Democrat (DFL in Minnesota), argues in a letter to Pawlenty that Congress has wide latitude to control interstate commerce. That is true, but it is equally true that there is no interstate commerce in health insurance; Congress has blocked it. What Congress proposes to do with ObamaCare is to control intrastate non-commerce — specifically, the choice of consumers not to carry health insurance, or at least not the “approved” version based on standards imposed by Congress.
In order to support this position, Swanson notes that Congress created Medicare and Medicaid, and that should act as precedent. This is not a new argument; Democrats in Congress offered it during the health-care debate, mainly last summer. It fails on its face. Neither program mandates membership. In fact, one of the big issues of the uninsured is that millions of them already qualify for Medicaid but haven’t enrolled. However, the creation of Medicare has successfully crowded out private insurance for seniors, leaving them with few options other than government largesse.
Swanson has to stand for re-election in November after a single term in office. Pawlenty won’t let this drop in the meantime, which will mean that Swanson may largely have to campaign on her choice to enable federal encroachment and the imposition of the IRS as the enforcer of a health-insurance mandate on taxpayers. Even in a state as liberal as Minnesota, that’s going to be a tough sale.