Sonny Perdue is the Republican governor of the state of Georgia. Perdue is at the tail end of his second and final term in the statehouse. His administration is presiding over a fiscal crisis — one with steep prolonged budget cuts — that are destined to cripple the state’s services and economy for the foreseeable future. But Perdue is now distracted by his newest crusade: Repealing health care reform. He, along with 13 other governors, have joined together to pursue legal action toward the federal government regarding the implementation of the new health care legislation.
Thurbert Baker is Georgia’s Attorney General. He’s a Democrat, who objects to Perdue’s course of action regarding the health care lawsuit. Baker is refusing to initiate the lawsuit.
There’s nothing new about governors and attorney generals clashing over a particular issue or law. In fact, it’s rather common. Both positions are popularly elected, so one has no autonomy over the other. In fact, 43 states popularly elect their attorney general– which can set in motion many a conflict on many issues.
So it should come as no surprise that in Georgia, the Democratic attorney general Thurbert Baker is clashing with the Republican governor over the implementation of the newly signed health care reform bill. Baker is refusing to move a lawsuit forward against the federal government because he believes it’s an inappropriate allocation of resources. Baker confirmed his thoughts in a letter to Governor Perdue:
“I do not believe that Georgia has a viable legal claim against the United States….I cannot justify a decision to initiate expensive and time-consuming litigation that I believe has no legal merit. In short, this litigation is likely to fail and will consume significant amounts of taxpayers’ hard-earned money in the process… I am unaware of any constitutional infirmities and do not think it would be prudent, legally or fiscally, to pursue such litigation. I must therefore respectfully decline your request.”
It should be noted that Baker is a gubernatorial candidate, and his stance — while seemingly principled — may be part political posturing. It should also be noted that Perdue, who’s in the waning stages of his term, has now decided to sue the federal government himself — hiring a “special attorney general” to prosecute the case. Conservatives in the Georgia legislature have also initiated articles of impeachment against Baker. Is Perdue posturing as well, or simply holding the Republican line on health care? Is there a difference anymore?
Putting empty political posturing aside, let’s examine how and if a lawsuit would work for the state. The contention on the part of Governor Perdue regarding this suit is that the government — specifically Congress, has never passed a law requiring Americans to purchase a product before — thus making the federal mandate to purchase insurance unconstitutional. Let’s take this point first. It can be argued that under the 10th Amendment, states are protected from being forced to follow federal laws not in the constitution. So in essence, a federal mandate to buy health insurance would be considered unconstitutional — and therefore not legally binding. Some constitutional scholars don’t believe that the 10th Amendment adequately addresses the unconstitutionality of the legislation. Robert Langran, a Supreme Court and constitutional law expert, thinks that while the case has merit, it would ultimately fail:
“It might be politically incorrect but not legally incorrect,” says Mr. Langran. “The Supreme Court has held for over a century that the federal government does have the police power to look out for the welfare of their citizens (and it has held since Reconstruction that we are federal citizens and state citizens).”
Langran believes that so long as a First Amendment right is not being violated, then usage of the 10th Amendment would not hold up. There are other legal precedents that may cause health care to stand. During the New Deal, the courts greatly expanded the powers of congress to regulate commerce, so a challenge to the new law such as Governor Perdue’s may ultimately fail.
So is it good politics to challenge such a law, or is it good policy? The political divide is widening in the state of Georgia, much like the rest of the country. Governor Perdue believes he is taking a principled stance, and that the suit will prevail. Baker believes the end results of a challenge to the law would fail, and squander resources in the process. Who’s on the right path? Precedent and history say that it is Baker, but those indicators are definitely not absolute. In today’s heated political environment, one can never underestimate passion and blinding partisanship. Perdue and Baker seem to fall right in line with divided climate.