Debate: Health Care Law Is Unprecedented and Unconstitutional

(April 5) -- In late March, Florida, along with a dozen other states, asked the federal courts to measure the new health care law against the Constitution's requirements. In the simplest of terms, this new law is an unprecedented and unconstitutional expansion of federal power that will cost Florida taxpayers billions of dollars.

For the first time in our nation's history, we have a law that will impose federal regulation on every adult American by mandating that they obtain health insurance for themselves and their dependents. This is a tax simply on living. It is a legislative power the framers of our Constitution deliberately denied to the federal government and specifically reserved to the states by the 10th Amendment.

Our legal challenge to this legislation is not based only on the economic harm it will do to Florida and our citizens, although that harm will be very significant. It is a determined effort to restore a proper balance between Washington, D.C., and the states in our federal system.

The Founding Fathers divided power between the federal government and the states to guarantee the people's fundamental liberties. They refused to give a general lawmaking power, like that vested in the states, to the federal government.

Instead, the Founding Fathers granted the federal government certain specific, "enumerated" powers. As James Madison explained in the Federalist Papers, the federal government "is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic."

Although federal power has been increasingly exercised more broadly since the Constitution was adopted, this fundamental principle has never been abandoned. The U.S. Supreme Court, in particular, has reaffirmed this tenet of American government again and again, ruling that Congress' legislative power must be exercised within accepted constitutional limits. This is especially true of federal social and economic regulation undertaken pursuant to the Constitution's Commerce Clause, which gives Congress the authority to regulate foreign and interstate commerce. Under this provision, Congress' reach extends to purely local activities by individuals within one state, but only where those actions can be said to have a "substantial effect" on interstate commerce.

The new health care law goes far beyond these recognized limitations. Mandating that every American obtain an approved form of health insurance does not regulate commercial or economic activities of any kind. Rather, it imposes an affirmative obligation on each individual, regardless of any activity in which he or she engages. This is the very kind of legislative authority that the Constitution reserves to the states alone. In other words, Congress has gone out of bounds and usurped state authority, making decisions about the delivery and consumption of health care services that should be made by the states or by individuals and families for themselves.

Furthermore, the law will require each of the states -- including Florida -- to dedicate an ever-increasing amount of state resources to carrying out the new federal requirements. Medicaid, for example, will be expanded far beyond any foreseeable reach the program had when it was adopted more than 40 years ago. Today, Medicaid consumes 26 percent of Florida's state budget. Under the new health care law, more than a million additional beneficiaries will qualify for Medicaid coverage -- which must be funded by taxpayers. Florida's own Agency for Health Care Administration estimates that, overall, this law will cost the state more than a billion additional dollars annually by 2019.

As the U.S. Supreme Court said in one leading case brought by New York against the federal government (which challenged a law establishing how states must deal with certain radioactive waste products), "States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the federal government." As a result, the court ruled, Congress "may not conscript state governments as its agents."

We are confident that the courts will find that Congress has exceeded its legitimate authority and declare the health care law to be unconstitutional and invalid.

There are many different ways Congress can reform the American health care system, but it must do so in a lawful and constitutional manner.

Bill McCollum is the attorney general for the state of Florida.