Betts

So, what's Cooper's response?

The Charlotte ObserverApril 6, 2010 

— North Carolina Republicans already smell victory in the General Assembly this fall, as well as hanging onto the U.S. Senate seat held by first-termer Richard Burr, and they're pushing hard for whatever advantage public opposition to the new health care reform law can give them.

They don't like the law much, either, so tapping into public disapproval of a health care bill that seems to offer a lot of ambiguity on some issues (as well as considerable certainty on others) must seem like a solid strategy. Polls by a leading Democratic firm, Public Policy Polling, show a stable political atmosphere that may help Republicans this year, and PPP analyst Tom Jensen thinks at least a plurality of North Carolinians oppose the new law so strongly they want it repealed. So do some Democrats, apparently, and U.S. Rep. Mike McIntyre said in an interview last week he, too, supports repeal.

Republicans hope to parlay confusion and discontent into votes this fall. That's one reason GOP leaders in the legislature are pushing legislation already adopted by a number of other states, including Virginia, that would exempt North Carolina from having to comply with the law.

It's called nullification, and though many thought that issue was settled in the 19th century, other kinds of nullification attempts have cropped up over the years on hot button issues. In the 1950s, it was school integration. This time it's health care for all that includes a mandate that everyone buy insurance or pay a penalty.

In a separate issue, they're also pushing Attorney General Roy Cooper to join at least 13 other states, including South Carolina, in a lawsuit challenging the law's constitutionality. Senate Republican Leader Phil Berger, R-Rockingham, wrote Cooper last month urging him to "protect against the unprecedented and unconstitutional overreach by the federal government." Berger asked Cooper to do everything in his power "to ensure that individual rights are being protected and freedoms are being safeguarded at the state level."

I thought within a few days we'd hear the crack of the bat as Cooper swatted Berger's suggestion over the centerfield fence. As a Democrat thought to have aspirations for higher office some day, Cooper seemed in a position to respond quickly and assertively to Berger's assertions, but he has kept silent on the issue.

I called his spokesperson Thursday to ask if he'd like to discuss it. Noelle Talley told me that Cooper was tied up in meetings and would not be available to speak about the bill. In any case, she said, his office is reviewing the issue and hasn't decided how to respond.

Perhaps Cooper - careful lawyer that he is - is simply taking his time examining the issue from a constitutional perspective. Perhaps his staff is digesting exactly what the new law means for North Carolina and its 9.3 million people and tens of thousands of employers. Perhaps his office is discussing opposing the lawsuit.

But one thing's clear: Delaying a response plays right into Republican hands.

Also, the delayed response is somewhat curious, considering how much cover legal experts have already provided for anyone who takes the position that nullification was essentially decided nearly three decades before the Civil War, or who dismisses constitutional questions.

My friend and fellow NCSpin panelist Chris Fitzsimon has written about Mark Hall, a professor of law at Wake Forest University, who has given a vigorous defense of the new law. Hall also posted an online note last week citing two well-known examples dealing with these issues.

Charles Fried of Harvard Law School, who served as President Ronald Reagan's solicitor general, put it this way: "The notion that a state can just choose to opt out is just preposterous.... As long as the federal law is independently constitutional, it doesn't matter what Virginia says.... It's like Virginia saying we don't have to pay income tax.... One is left speechless by the absurdity of it."

Hall went on, "This leaves only the well-worn arguments about exceeding power to regulate commerce and to tax for the general welfare. On these, most legal scholars are loud and clear about the merits. In sum, as University of Texas law professor Sandy Levinson says, 'The argument about constitutionality is, if not frivolous, close to it.'"

I don't know whether Cooper or his staff considers either the law or the challenge to it frivolous. State officials such as Cooper are dealing with a lot of issues these days and maybe they don't have much time to think about it. But if they want to give Republicans more good political ammunition, they'll continue to keep quiet on whatever it is they believe.

My guess is Republicans would be tickled pink with that.

Jack Betts is a Raleigh-based columnist and associate editor for The Charlotte Observer.

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