Dove, Dogs, and Shotguns

In an interesting twist, a gun conviction ruling by the Supreme Court becomes the precedence in a Texas lawsuit against Obama Care.

From the Houston Chronicle:

A Texas high school student’s decision to bring a .38-caliber handgun to school in 1992 could end up at the center of the legal fight over President Barack Obama’s health care reform plan.

Alfonso Lopez Jr.’s arrest at Edison High School in San Antonio set in motion a legal battle that may prove crucial to 13 state attorneys general fighting the new law.

Lopez, a senior when he was arrested for handgun possession in March 1992, ended up facing federal charges of violating the Gun-Free School Zones Act of 1990. But the Supreme Court, on a 5-4 vote, threw out his conviction five years later on the grounds that Congress exceeded its regulatory authority under the Constitution when it approved the 1990 law, which makes it a violation of federal law to possess a firearm in a school zone.

Commerce clause cited

In filing a lawsuit last week challenging the new health care law’s mandate that everyone must have health insurance, the 13 state attorneys general — including Greg Abbott of Texas — cited the same legal reasoning that went into the Lopez ruling.

At issue in both cases is the Constitution’s commerce clause, which limits the regulatory powers of Congress to matters involving interstate commerce. In the Lopez decision, conservatives on the court led by then-Chief Justice William Rehnquist ruled that the 1990 gun law was unconstitutional because it had nothing to do with commerce between states.

Upholding the federal government’s right to control guns in school zones would give Congress “a general police power of the sort retained by the states,” Rehnquist wrote for the majority.

That’s almost exactly the argument the states are making now in a lawsuit filed March 23.

Drawing parallels

Abbott and the other 12 state attorneys general say that health care does not meet the legal definition of interstate commerce, rendering illegal the congressional mandate that all Americans must purchase health insurance.

“In the past 15 years the Supreme Court has scaled back Congress when they’ve tried to inject themselves into purely state matters,” said one of the 13, Michigan Attorney General Mike Cox, in an interview on MSNBC.

The Lopez ruling was one of two Cox cited, saying it was a case where the federal government “tried to criminalize purely state behavior within a state.”

Prior to the Lopez ruling, the Supreme Court had for 60 years mostly followed the lead of Congress, ruling that congressional claims of regulatory power were valid under the Constitution. With the Lopez ruling, court watchers predicted a wholesale scaling back of such claims, clipping the wings of Congress to legislate in any area it wanted.

Hedging their bets

In the 2000 case of U.S. v. Morrison, the justices knocked down a provision of the Violence Against Women Act that gave victims of rape, domestic violence and other gender-motivated crimes the right to sue attackers in federal court. Rehnquist also authored the opinion.

Still, the attorneys general are hedging their legal bets. They also argue that the health care law’s insurance mandate for individuals violates the 10th Amendment, which states that powers not specifically delegated to Congress by the Constitution are “reserved to the states respectively, or to the people.”

Critics of the lawsuit say the U.S. health care system is national in scope, transcending state lines, and that extending benefits to the uninsured is an economic activity that requires the participation of all in the insurance pool.

If Obama administration lawyers can establish a connection between the health care law’s goals and interstate commerce, the high court’s conservatives may be hard-pressed to rule against Congress, skeptics say.

“The courts are not supposed to overturn the will of the elected representatives of people; that is something that’s generally anathema to conservatives,” said Paul Rothstein, a law professor at Georgetown University. “Conservatives may not like the health care plan, but they don’t want to be put in a position of judicial activism, overturning what the people’s elected representatives put in place.”

Supreme Court changes

Other experts see the lawsuit as having a very good chance of success, especially since Congress entered uncharted waters in approving health care.

The lawsuit “is definitely not frivolous,” said professor Randy Barnett of Georgetown University in an interview with the National Law Journal. “Anyone who says it is — and I know a lot of law professors have — they’re whistling past the graveyard,” Barnett said. “Anything that has never been done before has no precedent for it. And this (health care reform law) has never been done before.”

Since the Texas case was decided, Rehnquist has died and Justice Sandra Day O’Connor, a swing vote who sided with the majorities in the 1995 and 2000 rulings, has retired. In their places are two solid conservative votes, Chief Justice John Roberts and Justice Samuel Alito. Last year, moderate-liberal Justice David Souter resigned and was replaced by a like-minded jurist, Justice Sonia Sotomayor.

It’s not exactly how I thought we would have to use guns to fight healthcare, but hopefully it works.

NO Bama ‘12

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