Kelley & Co, John Suthers, 11/18/2011

Station: 710 KNUS
Show: Kelley & Co.
Guest: Suthers
Date: 11/18/2011
Topics: Obamacare, Individual Mandate, Federalism, Recusal.
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KELLY: Mr. John Suthers joining us on Kelley and Company for I believe the first time. Good morning.

SUTHERS: Good morning Steve and Murphy. How are you?

KELLY: We are doing very well thank you. I appreciated your attendance and your speech the other night there at the Dennis Prager and Hugh Hewitt event.

SUTHERS: That was a good event.

KELLY: It really was. Those guys are a lot of fun and you set a good tone there, so thank you very much. Well, it’s all about Obamacare. When we were introducing before that audience, you were one of the original five attorneys general. Now you have 28 generals as well as governors now on board. Questioning the constitutionality of Obamacare, you believe it is not going to pass constitutional muster. Why not?

SUTHERS: Steve, as I said to the crowd that night, it is not my job as attorney general to weigh in on what constitutes good healthcare policy. That is the legislative branch and the governor and the president of the United States. It is the job of the state attorney general to be protective of federalism. That is the relationship between the states and the federal government under the United States Constitution. Under the constitution, the federal government has enumerated powers. Article 1, Section 8 sets forth about 20 some powers that the federal government has. Elsewhere in the Constitution, including the 10th amendment, it said a power not specifically given to the federal government in this document is reserved to the states and the people. Not surprisingly, there is no healthcare power. The founders never envisioned the federal government would be in the healthcare business. The individual mandate requiring every individual to buy insurance is premised, Congress said on their Commerce Power, their power to regulate commerce among several states. In fact, the Commerce Power has been broadly construed to allow Congress to essentially regulate any economic activity that impacts interstate commerce. But there in lies the rub: this would be the first time in history that Congress will be reaching out to every individual American and saying we are going to punish you for your economic inactivity. For not engaging in commerce because your failure to do so impacts the marketplace by imposing burdens on other people who do buy insurance.

KELLY: But aren’t they assuming it’s for our own good though? Really, the betterment of everyone.

SUTHERS: Well, that’s right and that is kind of the typical liberal response. And that is what I get most. Gee, this is a good thing. And indeed it is. We want everybody to have insurance.

KELLY: So we have to penalize you. We have to punish you.

SUTHERS: That does not excuse the government from coming up with a constitutional means to do so. And they haven’t here. Here is the problem Steve. If the federal government says we have the power to force you to buy health insurance under the commerce power, then they have the power to force you to buy any product that they think is in your interest and that has some impact on interstate commerce. They can say you must buy a fuel-efficient car. You must buy solar panels because this Global Warming problem is getting out of hand. It is a terrible slippery slope.

KELLY: Is there any other thing where we use the term camel’s nose under the tent. This is more than that because you are talking a trillion dollars here and the impact it will have if implemented will be tremendous. Has there been any other attempt you can point to like this from our legislative body?

SUTHERS: There really hasn’t been on the federal level. And, in fact, Congress has virtually admitted that. Some of my opponents saying early on that well, on the time in the war of 1812 or sometime, the government made you buy a gun. Well, that was under the power to raise an army. That wasn’t under the commerce clause. No, there is no precedence for this. The government all but admits that and simply says hey this is something we need to solve a national problem so it really doesn’t matter how we are trying to get there.

KELLY: It’s going before the Supreme Court for five and a half hours. And that is unprecedented as well. Speak to that for a moment.

SUTHERS: They have taken up for different issues: Number one, the opponents of this have argued that it is not right that there is an anti-injunction act out there that ought to prevent the courts from hearing this. That hasn’t prevailed this far but the Supreme Court is going to hear an hour of argument on that question. Then they are going to take up the constitutionality of the individual mandate. Then they are going to take up the issue of severability. Which is kind of interesting because our trial judge in our case held that is wasn’t severable and because the individual mandate was unconstitutional, the whole act was unconstitutional.

KELLY: What does that mean, severability?

SUTHERS: Typically a law has a clause in it that has a clause that says if any part of this is held unconstitutional, that doesn’t impact the rest. But interestingly enough Steve, when this went through Congress, Congress specifically took out the severability clause. And the government argued to the trial court in Florida hey this is so part and partial, the individual mandate, to the whole bill, it’s got to be part of it. And the judge said I am taking you at your word and this is unconstitutional so I am finding the whole act unconstitutional. The Appellate Courts have not done that.

KELLY: That’s three. What is the final thing they are going to look at?

SUTHERS: They are going to look at the issue that Florida primarily raised and a few other states saying that the way that Medicaid is structured under Obamacare, it imposes an essentially a unconstitutional burden on the states. Because what they have done in Medicaid, a lot of the new coverage is not insurance coverage, it’s making more people qualify for Medicaid and its really going to tax the states’ budget over the next several years.

KELLY: The impact on business and job creation not withstanding here, what do you thing, are we going to get a fair hearing? Let me ask this question first, should Clarence Tomas and Elena Kagan recuse themselves for having, in Clarence Thomas’s case, it’s his wife who is a lobbyist for groups that opposed healthcare. And then, of course, you had Elena Kagan who was Solicitor General in the Obama Administration responsible for formulating some of this.

SUTHERS: Interesting enough Steve, its kind of hard to believe, whether a US Supreme Judge recuses themselves or not is totally up to them. There is no supervisory body. And I am going to let those two Justices decide for themselves. I am not going to weigh in on that. It’s going to be close Steve. Five and a half hours of argument is unprecedented. The court is going to take it very seriously. But we have philosophical bents on the Court. We have about four historically and traditionally leaning conservative, four leaning liberals. And it’s a 5-4 decision I can almost guarantee it is going to be Anthony Kennedy who will decide which way it goes.

KELLY: And that would, for those who do not follow the Supremes, that would lean what direction with Mr. Kennedy?

SUTHERS: It just depends on the issue. We had two historic Second Amendment cases where he went where most would view is the conservative side, saying the right to bear arms is an individual right, not a collective right. But he has gone the other way on some. I have heard both sides. I have heard from former clerks of his saying he is dedicated to federalism and is strong on federalism and he is going to be offended by this notion. And I read another clerk’s assessment that he is going to say gee this is a national problem that the Congress is trying to fix and courts shouldn’t stand in the way.

KELLY: So it could come down to one guy here in Justice Kennedy. I’ve got literally 40 seconds left. Your biggest concern, your biggest fear and will you be before the Supreme Court arguing on any level?

SUTHERS: I will not be arguing. I have had that privilege in the past but not in this case. I will be in the front row as they say. I think the Governors and the Attorneys General who are parties to the case will be there. We have hired Paul Clement, the former Solicitor General under George W. Bush who will argue the case. Did a great job in the 11th Circuit. I think he will do a great job. Here is what it boils down to and I am going to use a healthcare analogy.

KELLY: Ten Second though. Sorry.

SUTHERS: Federalism has been on life support for 30 years. We are going to decide if the Court is going to pull the plug or resuscitate it. That is what this case is all about.