So the contest for attorney general, when all is said and done, pivots on one issue and one issue only: whether Colorado should have joined a lawsuit opposing a universal health care mandate.
The clash between Republican AG John Suthers and Boulder District Attorney Stan Garnett is not, it turns out, about which candidate is more committed to consumer protection, as Garnett has often maintained.
And contrary to a Garnett ad, it’s not about Suthers’ failure to predict that a previously non-violent FBI informant would become a serial killer — his crystal ball having failed the day he signed release papers for a man serving time for check fraud.
No, Garnett’s beef with Suthers, as confirmed in recently released e-mails, is the latter’s decision to join with 20 other attorneys general and governors in a lawsuit arguing that the health-care reform law is unconstitutional. Before that occurred, Garnett actually supported Suthers.
“Your decision to engage Colorado in this legal battle is cynical and partisan, and outside the appropriate role for a state attorney general,” Garnett wrote on March 22. “Those who wondered why I, as a progressive Democratic DA would endorse a Republican AG, which I was doing as recently as yesterday, will wonder no longer.”
It’s no surprise Garnett would consider the lawsuit partisan (18 of the 20 state officials in the action are Republican). But “cynical”? As if the lawsuit were all for show, with no great principle at stake?
Unfortunately for Garnett, that attitude is hard to uphold in the wake of the recent ruling by Judge Roger Vinson of federal district court in Florida rejecting an Obama administration request that he dismiss the case. Those who consider such litigation hopeless or frivolous might want to read Vinson’s opinion.
At this stage, the judge was mainly concerned, as he explained, with whether “each of the counts of the amended complaint states a plausible claim for relief.” And while Vinson was unimpressed with some of them, one constitutional issue could not be ignored — the very one Suthers has emphasized all along. Can the federal government, under the Commerce Clause, order every American to buy a good or service in the private market, and punish them if they don’t?
“At this stage in the litigation,” Vinson concluded, “this is not even a close call. . . . The power that the individual mandate seeks to harness is simply without prior precedent.”
In previous cases involving the Commerce Clause, “All Congress was saying is that if you choose to engage in the activity . . . you are engaging in interstate commerce and subject to federal authority,” Vinson explained.
But this mandate is different. “It is not based on an activity that (Americans) make the choice to undertake. Rather, it is based solely on citizenship and on being alive.”
To Suthers, “This is not just about health insurance. Historically, the federal government has relied upon incentives to get you to buy what it wants you to buy. . . . But this is a huge leap, and if they force you to buy health insurance they can force you to buy anything.”
Garnett says if he were attorney general, he’d keep his eyes locked on state business and refrain from sticking his nose in political battles elsewhere. And while that may be sound policy for the most part, the health care law imposes huge costs on the states while taking a direct shot at individual liberty. If Colorado can’t defend itself and its citizens at such a moment, what good is the AG anyway?
E-mail Vincent Carroll at vcarroll@denverpost.com.
