In the spirit of the Tea Bag Revolution, Republican attorneys general are involved in class action activity using the tactic of interposition.
This is the same concept propounded by the legendary Senator John C. Calhoun of South Carolina, a doctrine that clashed with that of the founder of the Republican Party, President Abraham Lincoln of Illinois.
When was the last time you heard a Republican refer to The Party of Lincoln? In bygone years the phrase was used repeatedly at Republican Party national conventions and on the campaign trail.
There is a good reason why Republicans have abandoned the phrase. Their spokespersons, in a final desperate bid to defeat health care legislation that would provide coverage to an additional 30 to 32 million more Americans, have used the same argument advanced by the Confederacy in opposition to Abraham Lincoln's federal concept.
The current use of interposition, which was used broadly the last time when Governor George Wallace of Alabama advanced it as a means of preventing desegregation in his state, is now being articulated in the realm of the federal government mandating purchase of health care policies.
The same party that rushed off to war in Iraq without worrying about the rights of individual citizens when it came to exercising the war power is now upset that Americans will have their freedoms trampled upon if the government holds sway and mandates coverage.
By insisting that this is a power to be exercised by the states, and that to do otherwise involves an infringement of liberty, is no more than the interposition position of John C. Calhoun being applied to a newer fact situation.
The doctrine of implied powers was advanced early by the longest service chief justice in U.S. history, John Marshall, who took the logical position that the Constitution was a living and breathing document that needed to be interpretively built upon in order to endure.
Two examples are communications and aviation. There are no amendments or mention in the Constitution about television, radio, or aviation since these later inventions did not exist at the time.
In order to achieve comity under the supremacy clause the federal government pre-empted the field regarding regulation in the aforementioned areas.
Moving the argument into the present historical context, a logical and cohesive legal argument can be made that the federal government in the broad interest of the nation should be permitted to regulate citizen participation in the mandatory purchase of insurance.
Based on historical precedent the case to be made on behalf of federal pre-emption in a specific area is whether the issue involved falls into that of serving the broad national interest.
Such an argument has been accepted by courts in instances where the national interest is served by such a broad policy. Such an instance would be that of imposing national regulatory standards to minimum aviation or the airways.
Purchase of health insurance is an issue that falls into a broad national category. It is an area where regulation is needed in the national interest.
This has been the yardstick on which historic legal cases involving overriding national interests have been resolved.
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