At first, people just shook their heads. Of course Texas would lead the charge and file a suit against the health care legislation. Many just shrugged their shoulders and figured it was just in the cards.
But not everyone.
An email sent out by the LoneStar Project did a better job of sharing the news than any of the Texas newspapers:
Texas Democratic Leaders Issue Letter Rebutting Abbott Lawsuit
And so it begins, as all progressive campaigns in Texas, with rolling a snowball uphill on a warm day. But that hasn't stopped us yet!
Progressives in my corner of Texas are excited by the response of a few Democratic legislators in the State House. They sent a letter to Texas Republican Attorney General Greg Abbott with some very specific concerns.
First, they start with the AG's complaint about the Commerce Laws:
In the current suit as well as your January 5, 2010 letter to Senators Hutchison and Cornyn, you contend that Congress is overstepping its authority under the Commerce Clause by imposing a tax penalty on individuals who choose not to buy health insurance. A thorough reading of case law does not support your assertion. Federal courts, including the U.S. Supreme Court, have time and again given Congress broad authority under the Commerce Clause to regulate interstate commerce and impose taxes. Your assertion clearly ignores a more current case (Gonzales v. Raich) in which the U.S. Supreme Court looked at the legislation as a whole to determine if the individual provision was necessary to achieve the stated economic objectives. Many scholars have stated that Gonzales v. Raich decision provides a sufficient basis for Congress to mandate that individuals purchase health insurance. Notably, President Ronald Reagan's Solicitor General, Charles Fried, stated yesterday that the federal health law's requirements are nothing new: "[w]e have tons of laws that impose obligations on people," he said, "and some people would rather not participate, starting with the Internal Revenue code" - or the draft in wartime, or Social Security, or environmental restrictions on the states.
Next, they address nullification - they basically remind the good AG that the Civil War has already been fought and lost:
Furthermore, nullification and secession as popular American legal theories were tested, fought and defeated at Appomattox. The 10th Amendment does not allow a Texas governor to secede-or a Texas Attorney General to sue-just because they want to score political points. As a Texas taxpayer, we ask you to quit wasting taxpayer money with threats of lawsuits destined to lose, go back to work on issues like predatory lending or toxic contamination in Texas air and water, and shelf these divisive, extreme and losing ideas.
Then they remind him that there is a process to follow in Texas which would include the State Legislature:
While you are free to hold whatever personal view you care to hold, given that Texas state agencies are being asked to cut their budgets by 5 percent, and the Legislature has neither appropriated your office the funds for nor instructed you to pursue such litigation, this action has all the markings of a frivolous lawsuit.
Finally, they expect a response:
To our knowledge, the Legislature has not instructed you to institute this suit nor has it specifically appropriated money for the proposed litigation. Please explain what constitutional or statutory provisions authorize you to bring this type of lawsuit. Also, please explain how you have obtained the consent of your client, the State of Texas, under the applicable provisions of the Texas Disciplinary Rules of Professional Conduct. Finally, please explain how you intend to pay for the litigation.
Finally, please provide our offices with copies of any legal briefs or memoranda prepared by your office that address in any way the questions in the preceding paragraph. To the extent that you seek to withhold any information, please note that this request for information is made for legislative purposes under Section 552.108 of the Government Code.
According to the Lone Star Project Email:
Texas Democratic legislators, led by Representative Garnet Coleman, who serves on President Obama’s State Legislators for Health Reform Committee, rightfully questioned Abbott’s frivolous lawsuit, his questionable authority to file such a suit and the potential harm his actions could cause millions of Texans.
Coleman is a State Representative for District 147. Others signers are:
Eliot Shapleigh, State Senator, District 29
Trey Martinez Fischer, State Representative, District 116
Rodney Ellis, State Senator, District 13
Jessica Farrar, State Representative, District 148
Leticia Van De Putte, State Senator, District 26
Sylvester Turner, State Representative, District 139
To see the complete letter, check out Katherine Haenchen's blog at Burnt Orange Report.
I tell you, this snowball has some definite possibilities...