MINNESOTA HEALTH REFORM FOES URGE STATE LAWSUIT

Requirement That Citizens Buy Insurance Is Unconstitutional, They Say

Republicans in Minnesota want Attorney General Lori Swanson to file a
lawsuit blocking federal health care reforms, citing the U.S.
Constitution's Commerce Clause and 10th Amendment.

Standing in their way, though, might be a pot-smoking medical
marijuana advocate from California named Angel Raich.

During a Capitol news conference Wednesday, prominent Republicans
said they will introduce a resolution on the Senate floor today
asking the Minnesota delegation to vote against the bill and seeking
a lawsuit to block it if Congress passes it. In doing so, they raise
an issue that has reverberated from tea party rallies to statehouses
across the country -- that the federal health care bill is unconstitutional.

On Wednesday, Idaho's governor became the first to sign a measure
requiring the state attorney general to sue the federal government if
residents are forced to buy health insurance. Similar legislation is
pending in 37 other states.

Minnesota Sen. Julianne Ortman, R-Chanhassen, cited a provision in
the proposal requiring people to carry health care coverage, saying
the federal government has never required anyone to purchase goods or
services. She compared it to forcing people to buy a car in order to
prop up the sluggish auto industry.

"People might choose not to buy a Chevrolet, or they might choose not
to buy a car at all. That is the quintessential comparison here. It's
forcing people into commerce when they don't want to be in commerce,
and that's why it's unconstitutional under the Commerce Clause," Ortman said.

Ortman's complaint, along with a strongly worded letter to the
state's congressional delegation sent Wednesday by Rep. Tom Emmer, a
Republican gubernatorial candidate from Delano, echoed some of the
rhetoric in the broad national debate over health care reform.

So did the Democratic response.

"Once again, the party of 'no' needs to be dragged kicking and
screaming down the road to real health care reform that will make a
difference in the lives of Minnesotans," Sen. Linda Berglin,
DFL-Minneapolis, said. "Recognizing that their delay and scare
tactics have not resonated with the public, they are resorting to old
and discredited arguments, saying that the federal health care reform
bill is unconstitutional."

The argument is not entirely discredited. Even the nonpartisan
Congressional Research Service questioned the mandate in a report last year.

"Whether such a requirement would be constitutional under the
Commerce Clause is perhaps the most challenging question posed by
such a proposal, as it is a novel issue whether Congress may use this
clause to require an individual to purchase a good or a service,"
wrote the group, which advises members of Congress.

But many legal experts say it's a long shot. And marijuana has a lot
to do with why.

The Commerce Clause allows the federal government to pass laws
relating to interstate commerce and, since the Great Depression, has
become a way for Congress to pass bills on any number of subjects,
including violence against women and gun prohibitions.

But over the past 15 years, the Supreme Court has been more receptive
to striking down federal laws as having no relation -- or merely an
attenuated connection -- to commerce, including the Violence Against
Women Act and Gun-Free School Zones Act.

Angel Raich may have put a stop to that trend.

Raich suffers from a variety of ailments, and she grew and smoked her
own marijuana to alleviate some of her discomfort -- a practice
California allows under its medical marijuana laws.

But drugs remain illegal under federal law, and Raich sued, alleging
that those laws violate the Commerce Clause and the 10th Amendment.
Because her pot was never bought or sold, Raich argued, she didn't
participate in commerce, and the Commerce Clause didn't apply to her
or others growing marijuana for themselves.

The Supreme Court didn't buy her argument, ruling that staying out of
the marijuana market rather than participating in it does affect
commerce (even if the market is illegal). Conservative Justice
Clarence Thomas and then-Chief Justice William Rehnquist sided with
Raich, but the court's liberal wing prevailed, even winning over
conservative Justice Antonin Scalia.

"Raich seemed to stem the Rehnquist court's rollback of Congress'
Commerce Clause power. And Justice Scalia went along with that, using
reasoning that arguably expands Congress' reach," said Mehmet
Konar-Steenberg, an associate professor at William Mitchell College
of the Law. "So I don't know how much stomach there is at the Supreme
Court right now to try to revive this line of cases."

Furthermore, the links between health care and commerce are clearer,
Konar-Steenberg said, pointing out -- as others have -- that many
already purchase insurance and that those who don't have their
emergency room bills picked up by everyone else. "These don't strike
me as attenuated links to interstate commerce," Konar-Steenberg said.

There are a few narrow exceptions to the health care bill's so-called
individual mandate, including one allowing people to opt out on
religious grounds. Those who cannot afford private insurance would
receive government subsidies to help pay for it.

A spokesman for Attorney General Lori Swanson, a Democrat, had no
comment on the Republican request to file a suit.