LOTFI: Tennessean Newspaper Columnists Grossly Misinterpret Constitution

By: Michael Lofti

NASHVILLE, January 27, 2014—Recently, Tennessean columnists Gail Kerr and Phil Kramer both penned separate columns full of insults and name-calling, which equate to little less than political hit pieces against state Senator Beavers (R) in which the two grossly misinterpret critical facts surrounding the Health Care Freedom and Noncompliance Act (SB1888).

The two poorly attempt to repudiate the legislation, and in doing so, prove critical deficiency of a working knowledge of the U.S. Constitution and Supreme Court case law.

Kramer states in his column that the bill cannot fly because the federal government can commandeer state governments to carry out federal law. “I was taught this in public school. It is called The Supremacy Clause, which is part of Article VI of the Constitution. Basically, if a federal and state law contradicts, then the federal law is supreme,” wrote Kramer.

Kerr echoes Kramer’s interpretation of the Supremacy Clause: “It’s not just a bad bill, it’s almost certainly illegal. The U.S. Supreme Court ruled in 2012 that President Barack Obama’s Affordable Care Act is constitutional. State laws cannot trump federal laws.”

First, the Supreme Court did not rule the Patient Protection and Affordable Care Act (Obamacare) constitutional. Clearly, the two have never read National Federation of Independent Business v. Sebelius, which is the actual case, not what they have read in the headlines. The Court redefined the health care law to be interpreted as such, which was more suitable to the possibility of constitutionality. Therefore, as drafted by lobbyists and passed by Congress, the health care law is not found to be constitutional, as proven by the need to redefine the law by the Court, to the dissent of multiple Justices.

Second, a government run school taught that big government was supreme?  Shocking.

This supposed Supremacy Clause of the Constitution reads, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…” (emphasis added).

Note these words in particular: “…shall be made in Pursuance thereof—this Constitution.” The federal Constitution delegates less than two dozen powers to the national government. Health care is not one of them. Health care is, in fact, a power of police, which are powers delegated to the state and local governments.

With regards to police powers, Justice Day wrote in Supreme Court opinion:

“In interpreting the Constitution it must never be forgotten that the nation is made up of states, to which are entrusted the powers of local government. And to them and to the people the powers not expressly delegated to the national government are reserved. The power of the states to regulate their purely internal affairs by such laws as seem wise to the local authority is inherent, and has never been surrendered to the general government” (emphasis added). (Hammer v. Dagenhart; 247 U.S. 251 1918)

Is health care a power expressly delegated to the national government? No.

Set aside the two columnists’ misinterpretations of the Supremacy Clause. Why? It doesn’t even matter. SB1888 in no way conflicts with the federal health care law. The law has nothing to do with federal vs. state supremacy. As Kramer himself points out, it is a matter of commandeering.

SB1888 is an anti-commandeering, noncompliance bill. What is anti-commandeering? It is a 100% legal doctrine handed down by the Supreme Court in four separate rulings over the past 172 years, which states that the federal government cannot force state and local governments to enforce federal regulations.

What does case law tell us of commandeering? Most famously, in Printz v. United States, the Court found that state legislatures are not subject to federal direction, and that Congress could not force states to carry out their duties.

According to Justice Scalia, “Most conclusively in these cases, the Court’s jurisprudence makes clear that the Federal Government may not compel the States to enact or administer a federal regulatory program.”  Justice Thomas expounds, “Although I join the Court’s opinion in full, I write separately to emphasize that the Tenth Amendment affirms the undeniable notion that under our Constitution, the federal government is one of enumerated, hence limited, powers.”

The well-established anti-commandeering doctrine forms the legal basis of SB188, which reads:

“No state entity shall establish or administer, or assist in establishing or administering, any specific regulatory scheme to operate the federal Patient Protection and Affordable Care Act of 2010, or any subsequent federal amendment to such act, in this state.”

The legislation, as written, has nothing to do with federal supremacy. It is a bill, which simply states that Tennessee–including its employees–will not be commandeered, nor coerced into implementing or operating the regulations stemming from Obamacare.

Furthermore, the bill will not cause those Tennesseans who have signed up for Obamacare to lose their coverage, as Kerr claims.

The two columnists both claim that SB1888 would be illegal. Both are hereby challenged to cite Supreme Court case law to prove their fanciful theories correct.

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