THE BLOG
03/18/2010 05:12 am ET | Updated May 25, 2011

Texas Attorney General Seeks Activist Judges

On December 30, the Texas Attorney General challenged the Senate version of the Patient Protection and Affordable Care Act, joining a letter from 13 state Attorneys General to the Speaker of the House of Representatives and the Majority Leader of the U.S. Senate. The Texas Attorney General issued his press release and joined this legally empty act the week after he filed for re-election.

There is no law to challenge.

The Texas Attorney General would have no standing, legally, to challenge political horse-trading in the U.S. Senate, even if a statute passed. The threat of court action is grandstanding by a Texas Attorney General who has no standing to pursue the vague discrimination and fairness claims he references in his press release.

He cites no law, understandably. A state and its agencies are not "persons" entitled to the right of constitutional due process. See, e.g., State v. Katzenbach, 383 U.S. 301, 323-24 (1966) ("The word 'person' in the context of the Due Process Clause of the Fifth Amendment cannot, by any reasonable mode of interpretation, be expanded to encompass the States of the Union, and to our knowledge this has never been done by any court"); State v. Riley, 84 F.3d 125, 130 n.2 (3d Cir.), cert. dism'd, 117 S. Ct. 282 (1996) (to same effect).

The letter threatens Congress with a claim that it violated its spending powers. Presumably, these Attorneys General think that they can find an activist court. Ironically, the AGs emphasize "the legitimate federal interests in the bill" while challenging a horse-trade which may or may not make it in to a finished statute. The greater irony: the 13 Attorneys General cite two United States Supreme Court cases which are examples of judicial restraint, each emphasizing and validating the Constitutional power of Congress to spend money in aid of the general welfare with a "wide range of discretion permitted to the Congress." Helvering v. Davis, 301 US 619 (1937). Helvering is in no way the "warning" the AGs' letter claims. Should a State Attorney General threatening court action overrule the actions of our elected Congresspersons? The great Justice Cardozo held in Helvering: "Whether wisdom or unwisdom in the scheme of benefits set forth in Title II (Old Age Benefits), it is not for us to say. The answer to such inquiries must come from Congress, not courts."

The Attorneys General then rely on So. Dakota v. Dole, 483 US 203 (1987), a case permitting Congress to indirectly act under its spending power to encourage minimum drinking laws. This effort was held constitutional even if Congress may not have been permitted to regulate drinking ages directly. Citing the Helvering opinion, the Supreme Court again explained its significance, with no reference to any "warning" as claimed by the Attorneys General but rather the deference the acts of Congress are given under our Constitution: "in considering whether a particular expenditure is intended to serve public purposes, courts should defer substantially to the judgment of Congress."

The December 30 letter represents the Texas Attorney General's attempt to score political points with his base: the secessionists in Texas are thought to cover 20 percent of its citizenry. His legal loser of a challenge evidences his desire for a U.S. Senate seat and his history of fighting for himself, not for the people he was elected to serve.

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