Arizona Attorney General Terry Goddard says he cannot be bothered to challenge the constitutionality of Obamacare because he and his constitutionally gifted state lawyers looked at their crystal ball and saw that it said “chances are not good, ask again later” and the cost to litigate would waste much needed taxpayer funds.  Earth to the AG:  Obamacare will bankrupt Arizona, which was on financial life support before Congress passed the largest single entitlement give-away program in U.S. history.  Governor Jan Brewer has warned the citizens of Arizona that Arizona does not have the money to pay the bill for the new state health care mandates contained in Obamacare.

In a letter to President Barack Obama (with copies to Arizona’s Congressional delegation) dated March 10, 2010, Arizona Governor Jan Brewer notified the President that his proposed nationalization of healthcare would financially ruin Arizona.  Her letter said:

“our state government

[Arizona] is on the brink of insolvency . . . . During this downturn, Arizona has lost the largest percentage of jobs in the United States.  The flagging economy has resulted in a loss of state revenues in excess of 30%, placing tremendous pressure on our state budget. Today, Arizona faces one of the largest deficits of any state.

There is no doubt that this fiscal calamity has been compounded by the enormous spending increases we are facing as a result of our Medicaid program, which has seen population growth of almost 20% in the past 12 months.

As the Governor of a state that is bleeding red ink, I am imploring our Congressional delegation to vote against your proposal to expand government health care and to help vote it down.  The reason for my position is simple: we cannot afford it.

Arizona is one of a few states that have pursued health care policies similar to those that you are proposing for the nation. In 2000, Arizonans voted to provide health care coverage up to 100% of the federal poverty limit for all residents, including childless adults, through the expansion of the state’s Medicaid program.

While the expansion resulted in a modest reduction in the state’s uninsured rate, the voters did not earmark adequate funding for the expansion and, as a result, our expenditures have become unsustainable, exploding from $3.0 billion to $9.5 billion during the past decade. Based on our state’s own experience with underfunded government health care programs, Arizona can serve as a case in point for what will happen across our nation if your proposal is enacted. . . .

Our country is living beyond its means and the federal government is leading the way by its example.

After Obamacare passed by both houses of Congress, Governor Brewer issued an open message to Arizona’s entire Democrat congressional delegation that was, quite stunning.  She basically accused Arizona’s house Democrats of bankrupting Arizona.  The Governor’s March 23, 2010, press release says:

The U.S. Congress and President Barack Obama have approved massive new federal health care mandates with severe consequences to Arizona’s state budget, consequences that Governor Brewer and other state leaders have been warning about since the summer of 2009.

State government costs for the new federal health care bill have been initially estimated to be nearly $400 million in FY 2011, nearly $1 billion in 2012, and over $1 billion in 2013. Given that Arizona’s Congressional delegation has been warned repeatedly that the State of Arizona obviously does not have extra funding to pay for federal programs, Governor Brewer is asking Congressional Democrats who supported the measure a critically important question – do you intend to provide funding to pay for your mandate, without just printing more money, or do you believe Arizona’s taxpayers should be left on their own to pay for the huge costs that Washington just created?

“I have repeatedly warned Arizona’s Congressional members, and especially the fence-sitting Democrats who could have defeated this expensive and intrusive measure, to please consider the huge state budget deficit they would deepen if they were to pass new federal health care entitlements,” said Governor Jan Brewer.

On January 8, 2010, the Arizona Governor estimated that Arizona will have a budget deficit of approximately $3.2 billion in its 2011 fiscal year.  She now estimates that Obamacare will require Arizona to spend an additional $1 billion a year that it does not have.  See Governor Brewer’s March 25, 2010 press release where she says

“Taking into account the changes included in the federal legislation, as well as the recently enacted state budget for FY 2011, the updated analysis shows that the costs to the State of Arizona of these unprecedented federal mandates total a staggering $11.6 billion over the next 10 years. Despite claims of “savings” due to increased federal funding, maintenance of effort requirements obligate Arizona to spend over $1 billion annually to access those increased federal funds.”

Apparently Arizona Attorney Terry Goddard didn’t get the Governor’s March 10, 2010, letter to President Obama or the March 23, 2010, notice to Arizona’s congressional Democrats because he’s decided to twiddle his AG thumbs while Arizona goes down for the third time.  Arizona Attorney General Terry Goddard issued the following press release on March 24, 2010:

Attorney General Terry Goddard said today he will not be joining lawsuits filed by 14 State Attorneys General to overturn federal health care legislation signed into law Tuesday.  Goddard said constitutional law experts on his staff, as well as many other legal scholars around the nation, regard the lawsuits as having little chance of prevailing.

“My Office has carefully examined both the federal health care legislation and the lawsuits challenging it. Our lawyers agree with the overwhelming majority of constitutional scholars of both parties that the lawsuits have little merit and that participating in them would be a waste of scarce taxpayer dollars,” Goddard said. “These lawsuits will be considered in federal court with or without Arizona’s participation.”

“I call upon the Governor to focus Arizona’s efforts on restoring KidsCare and requalifying for the billions of federal dollars we will lose if that crucial program is lost,” Goddard added.

Because the Arizona Attorney General will not sue on behalf of the state, Governor Brewer is considering calling a special session of the Arizona legislature for the purpose of having the legislature authorize the Governor’s office to file the lawsuit and do the job that Arizona’s elected Attorney General refuses to do.  I suspect that the cost to hire outside lawyers to represent Arizona will be much more expensive than the legal fees and costs if the AG’s office were to represent the people of Arizona.  See also “Brewer wants AZ legislators to let her sue federal government over health care mandates.”

I love the part where Mr. Goddard says he doesn’t want to “waste of scarce taxpayer dollars.”  Are you kidding?  Since when did Terry Goddard care about wasting Arizona taxpayers’ dollars?  Consider two recent lawsuits that Mr. Don’t Waste Taxpayers’ Dollars has invested precious Arizona resources:

1. He is fighting to prevent Arizona salon’s from using carp fish to give pedicures.  See “Court Ruling Expected Soon on If Arizona Fish Police Can Prohibit Carp Pedicures.”
2. Terry Goddard caused the State of Arizona to sue the Phoenix Country Club because the rich white men would not let the rich white women in the men’s grill within the private golf club.   The club had separate dining rooms for men and women and other dining areas for both sexes.  In his press release announcing the victory of good over evil, Mr. Goddard proudly proclaimed ““During this week of celebrating the legacy of Dr. Martin Luther King, Jr. and the historic inauguration of Barack Obama, we are proud to eliminate one more vestige of discrimination from a bygone era.”  Arizona’s knight in shining armor righted an egregious wrong, but for some reason he did not demand that the club eliminate  its separate men’s and women’s restrooms in favor of unisex restrooms.  See the Settlement Agreement.

The Arizona Attorney General’s PR puff piece contains some interesting factiods:

1. As an attorney, I am surprised to learn that the Arizona Attorney General has United States constitutional law experts on his staff.  Who are these so called experts, what qualifies them as experts and why don’t we hear from them?  It is rare for the Arizona Attorney General to be involved in a case before the United States Supreme Court, which is why I am surprised to hear the AG has more than one constitutional law expert.  Is the number two or three or twenty?  Does anybody know how many experts the AG claims and their names?  Given that the AG’s constitutional brain trust has concluded there is no basis to challenge Obamacare, how does Mr. Goddard explain the fact that the attorney generals of 13 states have reached the exact opposite conclusion and filed lawsuits doing what Terry says just can’t be.  Are the attorneys for the 13 states that are challenging Obamacare idiots not as smart as the constitutional nerds in the Arizona Attorney General’s office?  The states that have already sued are Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho, and South Dakota.  See the Complaint. A public interest group called The Thomas More Law Center also sued on behalf of itself and four uninsured individuals.  See The Thomas More Law Center Complaint.
2. The AG claims that the “overwhelming majority of constitutional scholars of both parties [agree] that the lawsuits have little merit.”  Really?  I note that Mr. Goddard offered no support for such a definitive statement.  It didn’t take me long to search the net and find some constitutional lawyers who disagree with Terry Goddard’s statement.  Ilya Somin, Associate Professor of Law (including constitutional law) at the George Mason University School of Law said this today about Obamacare’s requirement that American’s must purchase health insurance:  “The constitutionality of the individual mandate. In my view, Congress doesn’t have the power to enact this mandate under either the Commerce Clause or its power to tax.”  See also Randy E. Barnett’s article in the Washington Post called “Is health-care reform constitutional?” in which he says, ” “But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company.”  Mr. Barnett teaches constitutional law at Georgetown University.  He is the author of “Restoring the Lost Constitution: The Presumption of Liberty.”
3. For others who disagree with Mr. Goddard, see a story in The Hill that starts with “Democrats’ health care legislation is a “target-rich environment” for constitutional challenges and legal battles, Sen. Orrin Hatch (R-Utah) wrote on Saturday.  The bill’s provisions for an insurance coverage mandate, a manifest Medicaid expansion and new insurance exchange all violate key sections of the country’s guiding legal document, wrote the senator in the Wall Street Journal, along with Kenneth Blackwell, a senior fellow with the Family Research Council, and Kenneth Klukowski, a fellow and senior legal analyst with the American Civil Rights Union.”
4. See Georgetown University School of Law Professor Randy Barnett’s post called “New York Times Forum: “Is the Health Care Law Unconstitutional?” in which he discusses the constitutionality of Obamacare.  I like the part where he says that many learned law professors speculated that the Supreme Court would uphold two federal laws, but “The professoriate was shocked when both laws were held unconstitutional because they exceeded Congress’s power under the Commerce Clause.”
5. What does restoring KidsCare have to do with challenging Obamacare?  This is a red herring, aka a head fake.  It may be a valid point, but the KidsCare issue is unrelated to whether Arizona should challenge the constitutionality of Obamacare.  The Arizona Republic reports that Arizona’s entire $7 billion federal allocation for Medicaid will be lost unless the Arizona legislature re-institutes KidsCare by June 15, 2010.  According to AHCCCS, Arizona will pay $11.6 billion between now and 2020 to provide state healthcare services, including the additional services required by Obamacare.