Federal authority debate was settled in 1865

N.C. Attorney General Roy Cooper has put a damper on the state's new legislative majority's efforts to exempt North Carolina from the federal health care reform. In a letter to Gov. Bev Perdue, Cooper points out that state legislatures cannot "pick and choose which federal laws the state will obey."

The Republican-led General Assembly has followed the lead of some other GOP-majority legislatures in passing a bill stating that North Carolinians cannot be required to purchase health insurance or pay into a federal insurance fund, as required by last year's health care bill. That requirement does not go into effect until 2014, but some legislatures are getting into line early to oppose the law. Some states are also suing the federal government, claiming that the health insurance requirement exceeds the authority of Congress.

As Cooper points out, federal law trumps state laws. I thought that debate was settled in 1865. All the talk of "nullification" and state sovereignty from the 1830s met a bloody and final end 146 years ago. As to the lawsuit claiming Congress cannot require individuals to purchase health insurance, that will be settled by the Supreme Court. But it's ironic that states are suing over this insurance requirement, although most (perhaps all) states, including North Carolina, require individuals to have liability insurance on their vehicles. That doesn't seem to raise constitutional issues. States use their "coercive" powers to require individuals to purchase driver's licenses, hunting licenses, business licenses and other permits and to pay inspection fees, garbage fees and sundry other fees. Congress even requires employers to withhold income taxes and Social Security taxes when they issue paychecks. So why is health insurance the only federal (or state) mandate that raises these constitutional issues? I'll wait for the Supreme Court's decision for that answer.

The state law Cooper finds unenforceable also raises another issue: It requires Cooper to join the lawsuit against the federal health care law. As the late Richmond County Sheriff R.W. Goodman used to point out to county commissioners, one constitutionally established body (i.e., county commissioners) cannot order around another constitutionally established body (i.e., the sheriff). "I am a constitutional officer," Goodman used to remind commissioners. Cooper, the attorney general, holds an office created by the state constitution, and, as such, he is on an equal footing with the General Assembly. Legislators cannot order him to do anything. They can cut off his funding; they can make life difficult for him. But they cannot order him to do things he doesn't want to do. He is their constitutional equal, not a subordinate. The legislators themselves can join the lawsuit they love or file friend-of-the-court briefs on the side of the plaintiffs, but they cannot order Cooper to do so.

Maybe legislators should read that constitution they say they're defending.