State attorneys general, including Colorado’s John Suthers, have filed a lawsuit claiming that the new federal health insurance program is unconstitutional.
They have filed in Florida, a state with a politically ambitious attorney general. The central claim is that while Congress can regulate interstate commerce, no one can be made to make a purchase in interstate commerce, and the health insurance program is mandatory.
Commentators argue whether there are indeed constitutional, with the general agreement that they are or that courts will uphold them. They also claim that the program violates the tenth amendment, which reserves powers for the states. Commentators have discussed why the health insurance program is or is not constitutional, channeling American political conversation in familiar directions.
Fighting in court has long been one of the ways to continue political disputes; American politics famously allows many places to contest policies. Making social welfare programs mandatory and universal has been a challenge in American politics, both in legislatures and in courts.
The new federal health insurance program joins Social Security, the Civil Rights Act, and the Voting Rights Act as programs that were challenged in court once they had been enacted in legislatures over bitter opposition.
Although the courts appear to be very different from legislatures because they do not require a majority vote of elected representatives, they “follow the election returns,” as the political commentator Mr. Dooley said in the early 1900s, even if legal change is sometimes over a longer time period than immediate election cycles. The current disputes about health insurance are unlikely to be any different.
Before there were federal programs from 1935 onward, the states enacted old age pensions, payments to poor mothers, and pensions for teachers. All were challenged in court, often on the basis of state constitutional provisions now considered enforced by state legislatures alone.
It took political and legal battles to get there, but the enforceability of provisions that require states to spend for the general welfare is now upt to state legislatures. From the 1920s, when states began funding old age pensions or require counties to pay them, county commissioners or even businesses paying taxes could object to the mandate to spend money they did not want to pay or did not believe they had.
Even the now-sacrosanct old age pension program, what we call Social Security, underwent its share of legal challenges in the states, never mind the famous contests in the United States Supreme Court. The legal challenges to the state programs that preceded federal social security came up in every state that tried to enact a program, including Colorado.
In 1932, Denver citizen Anna Lynch and her sister applied for the new old age pensions the county commissioners were mandated to distribute. The two women had been running a boarding house in central Denver. They could no longer make ends meet, what with the Great Depression.
Beginnng in 1927, Colorado counties had been authorized to make old age pension payments, but they were optional. Since counties cannot print money, counties did not pay the new pensions. In 1931 the state legislature made the pensions mandatory, and the county attorneys screamed in opposition. The county of Denver denied the Lynch sisters their pensions; their case provided a perfect opportunity to test the program.
Old age pensions were one of the grand policy fights of the 1930s in the states and in the federal government as Congress made its way toward the 1935 Social Security Act. The Lynch sisters were the plaintiffs whose case could put to rest complaints about the new program from the counties, which found themselves mandated to pay for the program but with little support from the state. The Colorado law firm Quiat and Cummings took the Lynch sisters’ case.
Ira L. Quiat had been a state senator who had sponsored the legislation making the pensions mandatory; he was defending a program in court that he had backed in the state legislature. In 1932 the Colorado Supreme Court struck it down. Before the Colorado Supreme Court struck down its mandatory program, New Hampshire, Arizona and Pennsylvania all had lawsuits striking down state pensions for the elderly-now a widely popular federal, not state, program.
Every imaginable legal challenge was thrown at the state old age pensions. They were an unconstitutional transfer from one part of the population to another, they delegated judicial authority to bureaucrats, and therefore violating the separation of powers, and they were not limited to the poor, the only appropriate objects of charity in the state.
As a result of legal challenges or concerns that there would be legal challenges, many states (including Colorado) amended their state constitution in anticipation of the coming of the 1935 Social Security Act.
Colorado’s attorney general Paul Prosser requested that the Colorado Supreme Court to approve the new provision, which it did. Old age pensions had moved from the states, where they were difficult and expensive to implement, to the federal government, and from optional to mandatory. Moving through the courts was one more political exercise the states went through.
Litigation under state constitutional provisions was the last-chance effort to stop a program that addressed problems many Americans faced: middle class families who didn’t have the wherewithal to support their aging parents, aging adults who had no one to support them and who had never made enough money to put aside for retirement, and employers who might have been reluctant to release people to destitution but did not want to keep people in jobs when they were no longer effective.
Since the Lynch sisters lost their case in the Colorado Supreme Court and the state put in place a constitutional amendment allowing pensions for the elderly, the courts have changed their role in American politics and policy. The changes have resulted from the long lead-up to social security for the elderly as well as changes brought on by other federal programs in the 1930s; neither state nor federal courts work in the same political context that they did then.
State constitutional provisions are not used to strike down programs on the basis that they are not spending for the general welfare, or that they are transferring money from one group to another. Constitutionally, blurring powers between state civil servants, judges and legislatures is ordinary and policed in procedures.
Programs that cannot work if they are not mandatory are indeed mandatory. State and federal courts have decided to defer to legislatures concerning whether spending programs are for “the general welfare,” as constitutions require. The federal courts are unlikely to strike down central spending initiatives by the federal government.
Health insurance and its transformation have been a matter of concern for American policymakers for 100 years. Fighting policy change in court has a long tradition, but one that has eventually lost when it’s been the last effort after legislatures and executives have acted, for all the attention and energy it has required of private attorneys, county officials, and state attorneys general.
Susan M. Sterett is Associate Dean for the Arts, Humanities and Social Sciences Department at the University of Denver. EDITOR’S NOTE: This is an online-only column and has not been edited.
