Mentions of David Rivkin in the Media – November 2010

Quotes by and about David Rivkin, lead attorney, 20-state lawsuit, Florida Federal District Court

  • “This is one of the most important Constitutional challenges in history.”
  • “This is well beyond health care. It’s about a fundamental alteration of a key portion of constitutional architecture which would greatly impair individual liberty.”
  • “The states’ sovereign authority is being (trampled) upon by the federal government.”
  • Whether President Barack Obama’s health-care overhaul survives could depend on a . . . conservative . . . who sued to stop it mere hours after the bill became law in March. – Wall Street Journal/DavidRivkin.com

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  • David Rivkin, an attorney representing the states, argued the law will destroy the state’s Constitutional sovereignty by burdening them with uncontrolled Medicaid costs. The federal government is over reaching its taxing authority by penalizing people for not taking an action — not purchasing health insurance, he said.
  • “By imposing a mandate on inactive individuals they are eviscerating state sovereignty.”
  • Rivkin likened the health care law to the subprime mortgage crisis.
  • “If this cost shifting is allowed then it would let the government demand that people buy a prescribed package of mortgages,” he said. – Associated Press

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  • Constitutional law attorney David Rivkin, a longtime critic of federally funded health care and representing McCollum’s office, said it’s beyond the scope of the government to require its citizens to participate in the health-care market and to punish those who choose to not do so. He said the tax penalty punishes inactivity of citizens.
  • “If the Commerce Clause allows Congress to force Americans to obtain health insurance, there’s no limit to the government’s powers.” – Gannett

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  • David Rivkin, a Washington lawyer representing the states in the Florida case, says there comes a point where cost crosses a line. By turning the states into “financial wards of the federal government, you can vitiate state sovereignty.” – USA Today

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  • David Rivkin, the lead attorney for the 20-state challenge, calls that case “the most important of my lifetime.”
  • “If the federal government can do this,” Rivkin cautioned, “there is no limit to what the federal government can do.”
  • If the 20 states prevail on either challenge – compulsory insurance or the Medicaid expansion – Rivkin predicts that they will ask to stop the clock on ObamaCare until the Supreme Court rules. That will spare states from having to spend billions of dollars on a law that may never go into effect. – New York Post

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  • Such a mandate, however, would expand the federal government’s authority over individual Americans to an unprecedented degree. It is also profoundly unconstitutional.
  • Certainly some uninsured use emergency rooms in lieu of primary care physicians, but the majority are young people who forgo insurance precisely because they do not expect to need much medical care. When they do, these uninsured pay full freight, often at premium rates, thereby actually subsidizing insured Americans.
  • The mandate’s real justifications are far more cynical and political. Making healthy young adults pay billions of dollars in premiums into the national health-care market is the only way to fund universal coverage without raising substantial new taxes. In effect, this mandate would be one more giant, cross-generational subsidy – imposed on generations who are already stuck with the bill for the federal government’s prior spending sprees.
  • Politically, of course, the mandate is essential to winning insurance industry support for the legislation and acceptance of heavy federal regulations. Millions of new customers will be driven into insurance-company arms. Moreover, without the mandate, the entire thrust of the new regulatory scheme – requiring insurance companies to cover pre-existing conditions and to accept standardized premiums – would produce dysfunctional consequences.
  • Such a socialization of costs also happens to be an essential step toward the single payer, national health system, still stridently supported by large parts of the president’s base.
  • The elephant in the room is the Constitution. As every civics class once taught, the federal government is a government of limited, enumerated powers, with the states retaining broad regulatory authority. As James Madison explained in the Federalist Papers: “[I]n the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects.” Congress, in other words, cannot regulate simply because it sees a problem to be fixed. Federal law must be grounded in one of the specific grants of authority found in the Constitution.
  • Health-care backers understand this and – like Lewis Carroll’s Red Queen insisting that some hills are valleys – have framed the mandate as a “tax” rather than a regulation.
  • . . . a “tax” that falls exclusively on anyone who is uninsured is a penalty beyond Congress’s authority. If the rule were otherwise, Congress could evade all constitutional limits by “taxing” anyone who doesn’t follow an order of any kin – whether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat your vegetables.
  • This type of congressional trickery is bad for our democracy and has implications far beyond the health-care debate. The Constitution’s Framers divided power between the federal government and states – just as they did among the three federal branches of government – for a reason. They viewed these structural limitations on governmental power as the most reliable means of protecting individual liberty – more important even than the Bill of Rights.
  • . . . the question whether there are any limits on Congress’s power to regulate individual Americans. The Supreme Court has never accepted such a proposition, and it is unlikely to accept it now, even in an area as important as health care. – Wall Street Journal column (co-authored with Lee A. Casey)

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  • “David and Lee (Casey) are very well-regarded lawyers, but they’ve brought better lawsuits.” – Walter Dellinger, former Clinton administration acting Solicitor General.
  • Such criticism doesn’t faze Rivkin. … Mr. Rivkin said his clients have the right to challenge the law now for several reasons. For starters, said Mr. Rivkin, states have already had to spend money and commit resources to comply with the law. – Ashby Jones (DavidRivkin.com)
  • The pressure on Rivkin is “intense. Every move they make will be scrutinized.” – Bradford Berenson, a former White House attorney in the George W. Bush administration. – Wall Street Journal/DavidRivkin.com
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