Governors wishing to join Health Care lawsuit rebuffed by their own AGs

MN AND RI GOVERNORS DISCUSSING HOW TO PROCEED WITHOUT AG INVOLVEMENT

by Debra Mullins

(May 12, 2010) — On May 7, 2010, Rhode Island Governor Donald L. Carcieri sent a letter to RI Attorney General Patrick Lynch, urging him to join the multi-state lawsuit challenging the constitutionality of the Patient Protection and Affordable Care Act (PPACA) signed into law by Mr. Obama on March 23, 2010.

The letter reads, in part:

I call upon your office to exercise its discretion to protect our citizens from this unnecessary and probably unconstitutional intrusion of the federal government into the lives of Rhode Islanders whose freedoms to make their own choices about health care should be preserved and protected.

Some 14 states attorneys general led by Florida’s Bill McCollum have filed a complaint in the federal district court challenging the constitutionality of this new law as a violation of the equal protection and commerce clauses, the Tenth Amendment, and other Constitutional provisions. I ask you to consider joining their effort on behalf of all Rhode Islanders.

The rest of Governor Carcieri’s letter can be found here.

On May 10, 2010 AG Lynch, a Democrat, responded to the Governor’s request, stating he had “no intention of filing a lawsuit” because philosophically, he believes that “quality health care should be a right of all citizens, not the privilege of some citizens,” and legally, he believes that “the new law is a not an attack or infringement upon states’ rights or the liberties of individual Americans.” He also said that the lawsuit suggested by the Governor has “no merit — and no chance of success,” stating, “Most constitutional scholars studying this issue say it is absolutely clear that the lawsuits that only 14 states have brought will not succeed.”

Mr. Lynch is currently running for governor against State Treasurer and fellow Democrat, Frank Caprio in the upcoming Rhode Island primary election scheduled for September 14, 2010. The winner will go on to represent the Democrat Party in the November general election.

Last night, Governor Carcieri appeared on Fox News Channel’s “On the Record” with Greta Van Susteren and voiced his opposition to the PPACA on grounds of its unconstitutionality. Mr. Carcieri also stated that he was having discussions  with Minnesota Governor Tim Pawlenty on how to proceed without their respective attorneys general, both of whom are opposed to joining the lawsuit.

Governor Pawlenty made a similar request of MN Attorney General Lori Swanson on March 22, 2010. In a letter sent on April 5, 2010, Ms. Swanson rejected the governor’s request and indicated that she would file an amicus brief as friend of the court on behalf of the federal government. Ms. Swanson, however, left the door open for Mr. Pawlenty to file his own amicus brief on behalf of the Plaintiffs.

During an April 8, 2010 appearance on FNC’s “On the Record,” Governor Pawlenty stated he was in the process of reviewing whether or not he was going to file a brief in his individual capacity, in his capacity as governor, or start his own lawsuit.

When asked by Greta Van Susteren about the timing of such legal action, Mr. Pawlenty stated: “Fairly soon. You know this lawsuit’s going to take a while, so we don’t have to do it immediately. But we’ll be making some decisions and taking some actions probably within the next week or two, at least make the initial steps in that regard.”

However, this contradicts statements made by the governor prior to the passage of the PPACA. In an interview last fall with Esquire’s Mark Warren, Mr. Pawlenty said:  “I’ve had lawyers look at that — and I agree with the concern that the federal government’s taking over too much, and there’s been a trampling of states’ rights — but as we look at the law, the law doesn’t favor our ability to do that. So we raise it as a philosophical concern, and a policy concern, that the federal government is continuing to encroach on many, many areas that are substantially reserved for the states. But we don’t believe that we can base a successful legal strategy on that claim. I just don’t think a lawsuit — at least according to my lawyers’ view — is likely to be successful.”

Neither Governor Pawlenty nor Governor Carcieri has made a move to join the multi-state lawsuit or initiate legal action on their own. As previously reported at The Post and Email, the Minnesota Legislature is considering legislation that would put a proposed constitutional amendment before voters during the November general election. The amendment would exempt MN residents from having to purchase federally-mandated individual health insurance and from any subsequent penalties that arise from failure to do so.