Thursday, March 25, 2010

Overreaching by the Pennsylvania AG

I was surprised to read that the Attorney General of Pennsylvania, Thomas Corbett, had joined in the lawsuit seeking to have the new health care reform law ("The Patient Protection and Affordable Care Act," H.R. 3590, P.L. 111-148) declared unconstitutional, because the governor of Pennsylvania, Edward Rendell, is a Democrat who actively supported passage of the health care bill. I knew that the AG of Pennsylvania is an elected office, but had forgotten that the current AG is a Republican, not a Democrat. (I live in Pennsylvania and it is a fairly moderate state politically, and tends to alternate regularly between Republican and Democratic administrations.)

If the lawsuit were just challenging the parts of the act that affect state government operations and revenues (mainly the provisions expanding Medicaid, which is a program created by federal law but only partially funded by the federal government), I would be somewhat annoyed, but what really bothers me is that the lawsuit also challenges the provisions requiring individuals to purchase health insurance (the "individual mandate").

The complaint that was filed says that the Attorneys General who are the plaintiffs seek "to protect the individual freedom, public health, and welfare of their citizens and residents" and specifically asks the court to order the federal government not to enforce the act against both the states represented by the AGs and the citizens and residents of those states.

But who gave the Attorney General of Pennsylvania the right to "protect" my individual freedom and the right to represent my individual interests in court? And what if I don't want him representing me in this lawsuit?

There is an allegation in the complaint that the Florida AG has "broad statutory and common law authority to protect the rights of the State of Florida and its people." There is no similar allegation regarding the powers of the Pennsylvania AG, and I don't believe that AG Corbett has the legal power to represent the people of Pennsylvania (i.e., the individual citizens of Pennsylvania separate from the government of Pennsylvania) in this lawsuit.

Section 4.1 of the Pennsylvania Constitution creates the office of Attorney General and declares that the AG " the chief law officer of the Commonwealth and shall exercise such powers and perform such duties as may be imposed by law." The law that seems most relevant is section 204 of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, 71 P.S. §732-204, which states in subsection (c) that the AG shall represent "the Commonwealth and all Commonwealth agencies" in civil litigation. There is also the power to represent the Commonwealth and its citizens in federal antitrust litigation, but there is no general power to represent the citizens of Pennsylvania in any other kind of civil litigation. (On the inability of the AG to represent private parties, or enter into settlements affecting the rights of private parties, see Commonwealth v. Philip Morris, Inc., 40 Pa.D.& C. 225 (1999).)

It is possible that AG Corbett thinks that the statutory power to "intervene in any other action, including those involving ... the constitutionality of any statute" (71 P.S. §732-204(c)) allows him to join in this lawsuit but, unless unless the context clearly indicates otherwise, the word "statute" is defined to mean the statutes enacted by the General Assembly of Pennsylvania. 1 Pa.C.S. §1991. (And the context here does not clearly indicate a broader meaning of "statute." Quite the opposite, in fact, because it makes sense to give the AG the duty and power to defend state statutes against challenges to constitutionality, but it makes no sense to give the Pennsylvania AG the general power to challenge the constitutionality of federal statutes.)

The attempt by AG Corbett to challenge the constitutionality of the provisions of federal law which affect individual citizens of Pennsylvania but not the government of Pennsylvania is therefore outside of his power (what lawyers sometimes call "ultra vires") and the courts should deny him any standing to make those challenges.

Wednesday, March 03, 2010

Why Turkeys Run the World

The Senator Bunning/unemployment benefit extension fiasco is another illustration of a fundamental truth that was revealed to me some years ago in a book (more of pamphlet really) titled "Why Turkeys Run the World." The fundamental truth is that real decision-making power does not reside in the people with a goal or a mission or something to accomplish. The real power rests with people without any goal or agenda whatsoever.

Take Senator Bunning (please). The reason he was able to block Senate action was due in large part to the peculiar (to say the least) rules of that body, but the reason he was so successful was that he wasn't actually trying to accomplish anything, or even actually trying to block anything. If he had been trying to accomplish something, then the other Senators could have negotiated with him. But he didn't actually want anything, so there was nothing to offer him. It was his very purposelessness that gave him power.

A similar dynamic was seen in Senator Lieberman's self-indulgent opposition to health care reform. The real problem was not that Lieberman supported health care reform, or that he opposed it, but that he really didn't give a damn one way or another. Not really caring what happened, he had much greater freedom of action, and much greater power, than the Senators who stood for something.

Elections are usually decided by the independents in the middle, not with the stalwarts on either side of the political divide. Similarly, Congressional power resides in the indifferent and the unprincipled, not the dedicated.