Politics aside, litigation to stop ObamaCare could have real legs | Face the State

Politics aside, litigation to stop ObamaCare could have real legs
May 13, 2010
By Peter Blake

The lawsuit filed in March against ObamaCare was widely dismissed in the media as a no-hoper, a mere political stunt promoted by a baker’s dozen Republican attorneys general seeking higher office, or at least re-election.

Not so fast. The number of states suing has grown from 13 to 20, and the amended complaint to be filed Friday in the northern district of Florida will include significant new plaintiffs.

The states’ biggest challenge may be establishing their right to sue. If they can get over the hurdle of standing, they could win on the merits, considering the current conservative majority on the U.S. Supreme Court. Elena Kagan’s confirmation wouldn’t change that.

As Colorado Attorney General John Suthers put it, “The federal government does not want this to reach the Supreme Court.”

The additional plaintiffs will include the National Federation of Independent Business and some of its individual members. Their claim: We can afford to be self-insured and do not want to buy insurance or pay the penalty required by the law.

This is the key element in the constitutional challenge. The federal government has never before required anyone to buy specific goods or services as a condition of legal residence in the nation.

Yes, it can tax your income, but that was established by a separate constitutional amendment. Yes, it can draft you, but that comes under its power to “provide for the common defense.”

Suthers, in an interview this week, said his main reason for joining the suit (he was one of the original 13) was his “strong belief” that the Constitution’s commerce clause should never be expanded “to allow Congress to punish an individual American’s economic inactivity, for sitting on his butt on the couch.”

If we are forced to buy health insurance, then Congress has “total control over our independent economic decisions; they can force us to buy the fuel-efficient car they want; they can force us to buy healthy food.”

There’s nothing magical about health care, Suthers continued. “It just happens to be the vehicle they’re pursuing at the present time.”

Heretofore, Congress has regulated actual economic activity. “Here, they’re saying because you‘re a citizen and you’re not doing what we want you to do ... we’re going to fine you 2 percent of your adjusted gross income,” Suthers said.

He noted that starting in 1994, during the Clinton health care debate, the Congressional Budget Office has warned Congress regularly that “a mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

The states have another concern more important to them than mere individual liberty: The explosion of their Medicaid budgets because of ObamaCare’s mandates. Currently, Medicaid covers those whose incomes are equal to the designated federal poverty level. Under the bill, the coverage would rise to 133 percent. And the federal government won’t provide the dollars.

In Colorado, said Suthers, that means the state will have to extract an extra billion dollars from taxpayers between 2014 and 2020.

So why can’t states that don’t like the bill simply drop out of the Medicaid program? That’s not so simple, Suthers said. The way ObamaCare works, even if your state doesn’t participate, you still have to pay for everyone else. “It’s so coercive you don’t have a choice.”

As it says in the complaint, the new health care law “converts what had been a voluntary federal-state partnership into a compulsory top-down federal program in which the discretion of the plaintiffs and their sister states is removed.”

Suthers joined the lawsuit on behalf of Colorado despite the unhappiness of the legislature. Most of the majority Democrats signed a letter urging him to withdraw, but they took no further action since he is empowered by the state constitution to act independently.

Is Suthers, who is running for re-election in November, just pandering to his Republican base? If so, he has an odd style. At a speech the other day, after his GOP audience applauded his stand against ObamaCare, he told them that Arizona had gone too far with its new law turning illegal immigration into a state crime. The audience didn’t like his objections, the Arizona law being very popular with most conservatives.

“You loved me when I said there’s no enumerated [federal] power over health care,” he told the crowd, “but there happens to be an enumerated power over immigration. You gotta live with that.”

A successful suit wouldn’t nullify the entire health care bill, but it would require Congress to do a major overhaul. If the plaintiffs are successful, he said, Congress would have to “incentivize” state cooperation instead of mandating it.

That’s how it got states to pass seat-belt laws and minimum DUI standards. Establish them, or surrender federal highway cash. Still nasty, but not as bad as what ObamaCare demands.

Peter Blake writes Thursdays on Face The State. E-mail him at peterblake@facethestate.com.