Steve Bullock Writes a Letter

by: Matt Singer

Mon Apr 12, 2010 at 10:17:19 AM MST

Some of my favorite excerpts:

Like you, I take seriously my oath of office to "protect and defend the constitution of the United States, and the constitution of the state of Montana," as well as to "discharge the duties of my office with fidelity."

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I have analyzed these claims as I analyze constitutional challenges to our own laws, with the understanding that overturning the constitutional judgment of a popularly elected legislature grave matter in a constitutional democracy.

Although your letter is short on legal specifics [...] [emphasis added]

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As Justice Scalia explained in Raich, "[w]here necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce." Id. at 35 (Scalia, concurring).

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The lawsuit you urge me to join does claim that States participating in the federal Medicaid program must provide coverage, but also concedes that States may "avoid the Act's requirements" by "drop[ping] out of the Medicaid program." Florida v. Sebelius, Complt. fl 40. Although this choice would leave millions of people uninsured, it is a choice any of the States may make if they disapprove of how Congress wants federal Medicaid funds spent, and this choice is consistent with the Tenth Amendment. See New York v. United States. 505 U.S. 144 (ree2).

The lawsuit also presents serious standing and ripeness issues, given that it appears to be filed based more on the timing of the November 2010 elections than the date in2014 when individuals and states might first be subject to the Act's requirements.

Therefore, I have concluded that once you take the politics out of these issues, there is no credible constitutional claim. So, like nearly three-quarters of my Democratic and Republican colleagues in state Attorney General offices across the country, I have not joined the lawsuit. We are not alone in our bipartisan opposition to politicizing the Constitution and the courts in this way. Eighteen of your Republican counterparts in the United States Senate sponsored a similar health insurance reform bill in 1993, see 5.1770,103rd Cong. (1993), and I do not doubt their fidelity to their constitutional oath. Lawyers and constitutional scholars across the political spectrum have determined, as President Reagan's former Solicitor General Charles Fried has said, that the lawsuit is "simply a political ploy" without legal merit.

As legislators, you understand as much as any citizen the importance of resolving our heartfelt policy differences through the democratic process. Montana's decision not to join these lawsuits will not change the outcome if, contrary to nearly a century of precedent, the Supreme Court takes the surprising step of striking down this law and taking the country back to the days when the farm bill and social security were constitutionally suspect. Most importantly, however, Montana's decision not to join these lawsuits leaves these critical questions of national policy in the hands of "We the People" and our elected representatives, where these decisions belong.