Will state take role in lawsuits?

Montana’s Republican legislators claim they are speaking for most of the state’s citizens in pressing for a legal challenge of federal health-care legislation recently signed into law.

We’re inclined to believe they are right, in light of national polls on the subject and the outcome of elections that reflect a center-right leaning electorate.

So far, 18 states have joined in litigation challenging “Obamacare” on grounds that the federal government is not constitutionally empowered to mandate citizens to purchase insurance and that it violates the 10th Amendment by imposing new mandates and costs on the states.

That, of course, is a short version of what will be a lengthy legal argument. Montana Attorney General Steve Bullock has clearly stated that he won’t join the other states in the legal challenge, mainly because “it is highly unlikely” that the legislation will be found unconstitutional and therefore it would be a waste of taxpayer money to get involved.

He says his position is based on the opinions of a “vast majority of legal scholars.” Well, we’ll have to see about that.

Since it is unlikely that Bullock will bend to the wishes of 74 Republican legislators who recently sent a letter requesting him to join the lawsuit, it would be nice if he could at least be less dismissive and would more thoroughly articulate the legal arguments supporting his position. 

There are plenty of legal scholars who are publicly explaining how the legislation could be found unconstitutional. We certainly aren’t in a position to determine who is right. Since it involves fundamental questions about the relationship between the federal government and the states, this is a matter that must ultimately be decided by the U.S. Supreme Court.

But there is no reason for Montana to be on the sidelines as an observer, especially when it appears that a majority of the state’s residents oppose the expanded federal role in health care.

If the attorney general chooses not to act, there is also room for the governor to file suit on his own, as has happened in other states. Montana Code authorizes the governor to “issue an executive order declaring the intention of Montana to not implement” any federal mandate that “does not meet Montana’s cost-effective needs, does not serve Montana public policy, or does not conform to Montana customs and culture.”

The same law authorizes the governor to “direct the attorney general to vigorously represent the state of Montana in any action that results from or that is necessary to effect the executive order.”

Although Gov. Brian Schweitzer has been silent on this subject thus far, his office informs the Inter Lake that the governor and his staff are examining the 2,700-page health-care bill and will make a decision later about what action to take.