FREE SPEECH ZONE | Health Care Lawsuit Damages Constitutional Process


The proposed lawsuit to render the new health care reform law “unconstitutional” would be proper, if it were not so transparently political — thus politicizing and damaging a valued judicial process.

In Minnesota, as in other states, the tension between a conservative Republican governor (Tim Pawlenty), and a Democratic Attorney General (Lori Swanson) has boiled over to an acrimonious exchange of charges.

It reached a high point when in Wednesday’s April 7, Minneapolis Star Tribune, Jeff Johnson (Republican candidate for Attorney General in 2006), who has framed the debate for pursuing the suit, attempts to make the case (citing various Constitutional Law) that Swanson, should have joined the suit by 14 other state AGs to void the law on historical legal grounds.

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Governor Pawlenty had demanded that AG Swanson join the suit. However, in his brief advocating the suit, Johnson acknowledges that the Attorney General is not “required to do the governor’s every bidding” – and that is exactly what Swanson has done, by resisting the pressure to get engaged. So on this point, I am in agreement with Johnson and his Republican bloc. But on a variety of other points, they are not only wrong, but their comments and transparently biased position just adds to the unfortunate “politicizing” of  the most significant health care reform undertaken in America since the introduction of Medicare. And this is unfortunate, because Swanson has not only resisted this pressure, but she has acted properly and in the best interests of the state and the nation.

Johnson subheads his article with the note: “the question is whether the Constitution matters anymore”. In fact, that is not the question, because that is not for Johnson, Swanson, politicians of all stripes, or any of the other 14 AGs to decide; that can only be decided by the Supreme Court which may eventually hear this case.  In fact, the lengthy arguments of those promoting this suit, makes are straight out of Fox News, and the Republican play book, and debating them on the editorial pages does not support his claim that Swanson (and the other non-participating AGs) acted improperly. Further, regarding all the arguments of constitutionality, there are strong and experienced voices on the other side of the argument which claim SCOTUS will actually find the new law constitutionally sound.  That is precisely the position the chief legal officer of our state, and many others, have taken. In fact, she has actually joined the suit as a friend of the court! And it is eminently defensible.

The Republicans tout that 14 AGs have already joined the suit, which is true, but that leaves 36 other state AGs who have decided that joining the suit is not a good idea or worthy of the effort.  Interestingly, of the 14, 13 are Republican AGs with Republican governors urging participation; supporting my assertion this is transparently political. The one Democratic AG (from Louisiana) has admitted that he was pressured to join the suit by his governor, Bobby Jindal, to protect his staffing.

Be that as it may, Minnesota joining the suit already being promoted by 14 partisan AGs, does not add to the efficacy of the suit or in anyway provide a benefit to the citizens of our state, or any other state. In fact, it is detrimental in a number of ways.

The first is cost – both monetarily and in the form of effort and energy.  The judicial system in Minnesota is already on overload, as can be confirmed by attorneys, judges, defendants, and plaintiffs at all levels of the system.  Why Pawlenty would urge us to spend money and time on joining a speculative suit, while at the same time he is unallotting funding for virtually every other service in sight, is totally and transparently political.

Advocates of joining the suit have already conceded that, “if the governor requests initiation of a baseless lawsuit, or seeks to use the courts for partisan purposes, there would be a strong basis for the attorney general to rebuff her client” – a surprising admission, because it goes to the very heart of what this suit is all about. It is partisan to the core.  Taken out of context, this suit might have been less than “partisan”, but in the context of earlier events, that is not the case. The Republicans saw the stonewalling of health care reform as a way to damage Obama (with explicit statements to that effect).  They then used every legislative tactic available to prevent the bill’s passage.  Then, as the bill neared passage, they attempted to “kill the bill” in whatever way was possible. Next, they promised “repeal”. Failing all that, they have come to this: a lawsuit of doubtful merit and the consumption of time, money and resources by a minority of state AGs. Given that history, the intent of those urging joing the suit is clear, and it is not about “constitutionality”.

No, this suit is no longer about constitutional law which has now been polluted by politicizing the process; the real question is when will these partisan, political, obstructive tactics end so the citizens of our nation can get the health care reform they so urgently need and deserve?