Thank you for allowing me to testify with respect to HR 6036. I’d like to address three discrete issues her today. 1) The Kansas House has clear statutory authority to direct the Attorney General to appear for the State in any matter in which the Kansas has an interest; 2) A good faith basis exists to contend that the “Patient Protection and Affordable Care Act” violates the U.S. Constitution; 3) Litigation as to this question is underway and it is important that Kansas participate in such litigation given its profound implications for the citizens of our State.

I. HR 6036 is an Exercise of Clear Statutory Authority

HR 6036 represents an exercise of clear statutory authority under Kansas law. K.S.A. 75-702 provides that the Attorney General, when directed by the Governor or either branch of the legislature, shall appear in any matter in which the State is interested. The Kansas legislature has exercised this statutory authority in previous instances. In the case of State, ex rel., v. Dawson (86 K. 180) the Kansas Supreme Court made it clear that this provision is mandatory in nature with respect to the duty of the Attorney General to comply.

II. The “Patient Protection and Affordable Care Act” Raises Serious Constitutional Questions

"[I]n the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects." James Madison

The limitation of the federal government to certain enumerated powers is a lynchpin of our system of government. The core powers of the federal government are set forth at Article I, Section 8 of the Constitution which provides:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and Post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The salient question is which of the powers enumerated above grants the federal government authority to mandate that all legal residents of the United States have qualifying healthcare coverage or pay a tax penalty? Reliance upon the commerce clause (in bold above) as justification raises profound issues. In particular one must ask if the commerce clause extends to allow regulation of an individual decision NOT to engage in commerce then what possible limit is there on federal power.

Even the Supreme Court’s extremely broad commerce clause jurisprudence (see Gonzales v. Raich 545 U.S. 1 (2005) where federal regulation of cultivation of marijuana for personal use was upheld) has never extended as far as would be required to uphold the “Patient Protection and Affordable Care Act.” Most notably one can look to United States v. Lopez 514 U.S. 549 (1995), for the principle that the commerce clause does not extend to allow regulation of conduct that does not constitute “economic activity.” Again, what is being proscribed against by the federal law is the very opposite of economic activity. The new law’s imposition of a tax as punishment for those who do not comply raises its own set of constitutional questions. Congress cannot avoid the limits upon its powers under the commerce clause by relying upon its power to tax. As one commentator noted, “If the rule were otherwise, Congress could evade all constitutional limits by "taxing" anyone who doesn't follow an order of any kind—whether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat your vegetables.” Indeed, more than a dozen states have already initiated litigation contending that this provision violates the constitutional prohibition against unlawful capitation or direct taxes. In other words, the tax at issue in the bill is a direct per person tax not apportioned among the states consistent with the census and as such violates Article 1 Section 9 of the Constitution.

Both the commerce clause issue and the capitation tax issue feed directly into a broader issue relating to the Tenth Amendment which provides that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” An expansion of federal power, under either the commerce clause or the taxing authority, to the extent set forth in the “Patient Protection and Affordable Care Act” would render the Tenth Amendment a dead letter by removing any plausible limitation on federal power.

It is perhaps for this very reason that Thomas Jefferson defined the Tenth Amendment as “the foundation of the Constitution” and added that, “to take a single step beyond the boundaries thus specially drawn … is to take possession of a boundless field of power, no longer susceptible of any definition.”

III. Kansas Has a Clear Interest in Participating in Litigation That Will Resolve These Important Issues

As you are likely well aware many states have already moved forward with litigation addressing some of the questions addressed above. The outcome of these cases will have profound affects upon all Kansans and as such it is imperative that we not sit on the sidelines. More important that the constitutionality of the “Patient Protection and Affordable Care Act” itself are the federalism issue implicit in this debate. Whether one supports or opposes the policy goals of the federal law the question must still be asked, do the ends justify the means?

Having ceded to the federal government a limitless authority to regulate and tax we will have lost something very dear. We will have rewritten our basic constitutional order in a fashion inimical to the principals of ordered liberty. At one point in our history it was not thought odd for Patrick Henry to ask, “Is life so dear, or peace so sweet, as to be purchased at the price of chains or slavery?” We of course are not staking life or peace on the outcome of this debate. But the outcome of the litigation now in motion will profoundly influence the liberty of individual Kansas citizens and the authority of our State government to exercise appropriate authority within its proper sphere. It would be a shame for Kansas to stand silent in the face of so weighty a matter.