April 03, 2012 03:55 PM UTC

Suthers doesn't like a federal mandate unless it's done his way

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• by: Jason Salzman

( – promoted by Colorado Pols)

Colorado Attorney General John Suthers was all over the media last week, talking about what a terrible thing it would be if the federal government forced Americans to buy health insurance.

But in an email back in 2010, Suthers told The Denver Post’s Vincent Carroll that it wasn’t the federal health insurance mandate itself that bothered him, from a legal perspective, but how the mandate was instituted.

In the email, obtained via that Colorado Opens Record Act by Colorado Ethics Watch, Suthers wrote to Carroll:

“The way to constitutionally mandate health insurance would be to incentivize the states to do it,” Suthers wrote.

There’s nothing wrong with a lawyer wanting things done in accordance with how he sees the law, but let’s be clear that Suthers’ federal incentives, if they’re devised to “mandate health insurance,” as Suthers suggests, are simply a more polite form of Obama’s Commerce-Clause mandate.

Conservative objections about alleged federal intrusion or alleged lost individual freedom would,  as a practical matter, be nearly identical if the health-insurance mandate were the result of federal incentives or federal powers under the Commerce Clause.

Either way, it’s federal action, which makes you wonder why Suthers gleefully told KNUS’ Steve Kelley in November:

“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.”

Really? How does that square with Suthers’ view that the feds could accomplish the health-care mandate with incentives?

Anyway, in his media tour last week, Suthers told KHOW’s Craig Silverman that “it shouldn’t be the federal government pushing this down our throats.” But again, this sounds hollow when you know that Suthers simply wants federal throat-pushing of a different manner.

Suthers also told Silverman that the expansion of Medicaid under Obmamcare, as a vehicle to cover uninsured people, is a state burden that’s “so coercive as to violate federalism.” Yet, he told Carroll that a health-care mandate could be achieved with state incentives. If he believes the incentives are constitutional, then you’d think he’d have to believe the Medicaid expansion would be constitutional as well.

In the broader picture, and this is the take-away from Suthers’ behind-the-scenes correspondence with Carroll, conservatives should not be fooled into thinking that Suthers, by joining the lawsuit to stop Obamacare, is taking a principled stand against an alleged loss of individual freedom. He’s clearly not. It’s just this legal pathway he dislikes.

For Suthers, it’s the form, not the substance.

Email exchange between Denver Post columnist Vincent Carroll and Colorado Attorney General John Suthers, March 23, 2010

Suthers: Vince, I’m curious. I understood from my conversation with Alicia Caldwell that the editorial board doesn’t think there is anything unprecedented about Congress using the Commerce Clause to sanction economic activity and force you to buy a product or service it deems beneficial. Even the Congressional Budget Office told Congress that was unprecedented. If Congress can sanction your commercial activity and force you to buy a product, where does it end? Can you enlighten me a bit?

Carroll: I am not sure what our official position will be regarding whether forcing Americans to buy health care insurance is an unprecedented action by the federal government. As you know, though, the Post’s editorials have repeatedly backed a universal mandate, so it is extremely unlikely that the page would now argue that what it has been advocating is unconstitutional. Like many people, I too worry about what a court decision upholding the legislation would say about the reach of the commerce clause. But given recent legal precedents, I suspect the court would uphold the law.

Suthers: One last point. The way to constitutionally mandate health insurance would be to incentivize the states to do it.