April 21, 2010
RALEIGH — North Carolina Attorney General Roy Cooper should rethink his decision to avoid joining a lawsuit challenging the new federal health care law. That’s the assessment from the John Locke Foundation’s legal expert, who says in a new Spotlight report that Cooper has ignored the lawsuit’s primary legal question.
“Not once in the attorney general’s legal memorandum analyzing the health care bill does he address the primary question,” said Daren Bakst, JLF Director of Legal and Regulatory Studies. “At a minimum, he should address that question before making a decision about joining or not joining the suit.”
“A proper analysis might lead him to change his mind and join attorneys general in 20 other states who have worked together to file suit,” Bakst said. “If a proper analysis leads Mr. Cooper to decide North Carolina still should not join the lawsuit, that would be unfortunate. But it certainly would look more legitimate than basing a decision on the inadequate analysis he’s put forward to date. His current decision looks political.”
The primary legal question involves the limits of Congress’ powers under the U.S. Constitution’s Commerce Clause, Bakst said. “Specifically, the question is whether Congress has the power under that clause to regulate people for not taking an action,” he said. “Can Congress regulate people for inactivity? In other words, can Congress regulate Americans for simply existing?”
The Supreme Court has granted Congress broad powers under the Commerce Clause. If courts determine that Congress has the power to regulate inactivity, the “implications would be significant,” Bakst said.
“If Congress has the power to regulate people for merely existing, then there would be no logical conclusion to the power,” he said. “In this case, Congress wants to mandate the purchase of health insurance. An individual would be subjected to regulation not because of any action. Instead he would be subjected to regulation because he decided not to take action — specifically, not to buy insurance.”
That power would allow Congress to create commerce, as opposed to regulating it, Bakst said. “If such a mandate were allowed, there would be no basis to prohibit Congress from forcing Americans to take other actions,” he said. “Congress could tell Americans they must purchase bubble gum or handguns.”
“There would be no basis to prohibit Congress from requiring people to invest in the stock market or start a new business,” Bakst added. “The examples would be endless if the courts determine that Congress has the power to force people to engage in commercial activity.”
North Carolina’s attorney general has not addressed this critical issue, Bakst said. “Mr. Cooper says his decision not to join in the lawsuit is based on legal grounds, but it’s hard to accept that argument when the primary legal issue is ignored,” Bakst explained. “The existing analysis from the attorney general mentions many relevant cases and makes broad statements of law, but it never addresses the main question, nor does it even properly address other critical issues.”
The General Assembly can take action if Cooper refuses to rethink his decision, Bakst said. “If the attorney general refuses to join the lawsuit, state legislators should adopt resolutions urging him to change his mind,” he said. “To the extent feasible, they also should use their spending powers to pressure Mr. Cooper by withholding funds from the Department of Justice.”
The case is too important to ignore, Bakst said. “The arguments against the federal health care bill are compelling, and the implications of such a federal encroachment on individual rights should concern any state,” he said. “It is the attorney general’s job to represent the interests of North Carolinians based on sound legal grounds. Unless he joins the lawsuit, Mr. Cooper is failing in that responsibility.”
Daren Bakst’s Spotlight report, “Politics vs. The Health Care Lawsuit: N.C. Attorney General’s Decision Is Not Supported by a Proper Legal Analysis,” is available at the JLF Web site. For more information, please contact Bakst at (919) 828-3876 or [email protected]. To arrange an interview, contact Mitch Kokai at (919) 306-8736 or [email protected].