A Republican Form of Government

I've been liveblogging my reading of the twenty-state challenge to the health care reforms that Congress passed into law this year.  The Patient Protection and Affordable Care Act is undergoing a court challenge with arguments being heard today in Florida.

One of the least compelling arguments in the Florida et al. v United States Dept of Health and Human Services complaint thus far is paragraph 57:

57. By effectively co-opting the Plaintiffs’ control over their budgetary processes and legislative agendas through compelling them to assume costs they cannot afford, and by requiring them to establish health insurance exchanges, the Act deprives them of their sovereignty and their right to a republican form of government, in violation of Article IV, section 4 of the Constitution of the United States. 

It doesn't take much to see why this claim is ludicrous. Firstly, there is no reason to believe that unfunded mandates on the States are unconstitutional. In fact, they are a common way of accomplishing national goals. Their ubiquity has often led to grumbling from state legislators, but it goes to show that they are well-accepted by Congress and all Constitutional actors. Secondly, the structure of the Constitution suggests that this clause is not a limitation on the federal government. All limitations on Congressional prerogative are located in Article I, sec 9. This is not proof positive that the Republican Form of Government guarantee cannot be an injunction against the state, but it is a clue that McCollum might be barking up the wrong tree.

Article IV is generally regarded as outlining responsibilities of a state in the Union.  Section 1 sets standards for conduct among the states and expectations for interstate cooperation.  Section 2 establishes the responsibilities states owe one anothers' citizens and institutions.  Section 3 provides for the creation of new states and guarantees existing state sovereignty.  Section 4, the section cited by the complaint, guarantees that each state shall have a Republican Form of Government:

Sec. 4: The United states shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on the Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

This guarantee is very clearly of positive federal responsibility towards the states. In providing security from external threats, in putting down "second-amendment remedies", and in protecting fundamental political customs rights and structure, the Union will assist the States. The use of "United States" here as opposed to 'Federal Government', 'Congress', 'President', or any other explication of purely federal power fits nicely with the plain meaning of the Fourth Amendment: This guarantee compels a unity of purpose among the states and the new federal government.  Mutual assistance in the Revolutionary War secured independence, and--since the Federal Government was not expected to maintain a standing army--was necessary to the preservation of the Union.

Article IV, section 4 is certainly not a prohibition on federal action. If that had been the intention, it would very likely have resided in the previous section, which is concerned with State Sovereignty.

McCollum's paragraph also supposes that the government of the state is the recipient of the guarantee.  This is doubtful, as the clause seems aimed at states in the corporate sense. They are regarded here as nations; the people are protected, and the Republican form of Government is one promise to ensure their liberty.  If the harm that McCollum is seeking to avoid in asking for an injunction against the law taking effect is based on plaintiffs' budgetary woes, there is an easy solution: raise revenue.  As Professor Michael O'Hare of the Goldman School of Public Policy at Berkely recently exclaimed over at the Reality Based Community, there is a big difference between saying that the government can't afford a policy and that the citizens- the state corporate- can't afford a policy:

(1) Allowing a phrase like the state to slop back and forth between “the citizens who live and vote in California and their economy” and “the government they have elected” especially and most deplorably in phrases like “the state just can’t afford A”. A sentence like that with almost any A in it (decent schools, social services, public transit) is false.  If the state has the first meaning, it’s wrong simply because California is a rich jurisdiction even with 12% unemployment, and its people could perfectly well afford whatever A is without starving in the streets (the current California state deficit is less than $1000 per person; not chopped liver but nowhere near the “can’t afford” zone); if it has the second meaning, the whole sentence has to be restated as “Californians have chosen not to buy A for now, though they could if they wanted to.”

Moreover, considering there is no- and I mean not a single- reason offered in the complaint that the plaintiffs can't opt out of providing Medicaid for its citizens, it should be clear that what the GOP attorneys general mean to say is that, if possible, they would rather avoid paying for anything approaching near universal coverage, but they are unwilling to let the question play out in the political realm.  Medicaid is immensely popular and effective, a point plaintiffs concede in paragraph 4 of the complaint:

Plaintiffs cannot effectively withdraw from participating in Medicaid, because Medicaid has, over the more than four decades of its existence, become customary and necessary for citizens throughout the United States, including the Plaintiffs' respective states; and because individual enrollment in Plaintiffs' respective Medicaid programs, which presently cover tens of millions of residents, can only be accomplished by their continued participation in Medicaid.

So there are clear alternatives to a state's participation in Medicaid; plaintiff states lack the political will to pursue them.  To me, that indicates that this is a misuse of the Courts- for purely political reasons.