Friday, December 10, 2010

Lawsuits over health insurance care law

Matt Sissel of Iowa City proudly served in Iraq as a combat medic. But he objects to being “conscripted” into an overhauled federal health care system.

The uninsured artist is riled about a provision in the new health law that would require him to purchase insurance or pay a penalty starting in 2014. Last July, he filed a lawsuit to have the landmark act declared unconstitutional. “I don’t want the federal government dictating my personal financial decisions,” says Sissel, 29. “It can’t even run its own budget.”

In attacking the law in the courts, Sissel has plenty of company. A number of interest groups, state officials and ordinary citizens are seeking to have the health care law struck down in federal court, and action is heating up:

?This week or next, a federal judge in Pensacola, Fla., is expected to issue a preliminary ruling on perhaps the most prominent lawsuit. Brought by the governors or attorneys general of 20 states, the lawsuit seeks to have the act declared unconstitutional.

?Any day, a judge in Michigan could act on a request by the Thomas More Law Center to issue an injunction blocking the government from taking any further action implementing the law. The non-profit law firm, based in Ann Arbor, often brings anti-abortion cases.

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?On Oct. 18, the Republican attorney general of Virginia — who has compared the Obama administration’s regard for individual rights to the tyranny of King George — heads back to court for another round of hearings with a federal judge who recently turned down a Justice Department request to throw the case out.

The burst of litigation has the framers of the law and the Obama administration playing defense. Many scholars, such as Charles Fried of Harvard Law School, argue that the law is on firm legal footing. But there is no quick resolution in sight, and it may take a year or two, and a trip to the U.S. Supreme Court, for all the lawsuits to get sorted out. Still, that might be a quicker route to upending the law, or parts of it, than a threatened GOP repeal effort in Congress. Even if Republicans pick up more seats in November, they’ll have a tough time getting major changes past President Obama.

Under the health care law enacted in March, more than 32 million additional Americans are expected to get insurance, either through an extension of Medicaid, the state-federal program for the poor, or through exchanges where low- and moderate-income individuals and families can buy private insurance with federal subsidies.

The law’s ambitious sweep has made it a target for those who see it as an unjustified expansion of government. Plaintiffs challenging the law include a variety of religious groups, the nation’s largest small-business trade association, and a who’s who of conservative legal activism.

Sissel, for example, is represented by the Pacific Legal Foundation, a Sacramento-based legal watchdog group that supports limited government, property rights and free enterprise.

Liberty University, the fundamentalist Lynchburg, Va., college founded by the late Jerry Falwell, has filed a lawsuit claiming that exemptions from the law for religious groups are too narrow and violate freedom of religion under the First Amendment. The Tucson-based Association of American Physicians and Surgeons, which opposes government intervention in health care, also has sued.

Several cases, similar views

In many cases, the lawsuits make similar arguments. Several contend, for example, that a provision of the law requiring most people without health insurance to get coverage or pay a penalty exceeds the power of Congress to regulate interstate commerce under the Constitution.

The states, in the Florida lawsuit, also are challenging a provision of the law that greatly expands Medicaid. They claim the changes will cost them billions of dollars and wreck their budgets for years.

Justice Department lawyers say the lawsuits are without merit and premature. The penalties for people without insurance won’t take effect until 2014, and the states won’t have to start picking up costs of the expanded Medicaid until 2017.

But critics say the changes are so profound, the courts should act now. The law will “transform our nation beyond recognition” and “arm Congress with unbridled top-down control over virtually every aspect of persons’ lives,” the states have argued in court documents in the Florida case.

Florida Attorney General Bill McCollum said in an interview that if the individual insurance requirement is upheld, there is no end to what the federal government might require people to do. “The government could … force us to buy a General Motors car or put our money in a government-owned bank,” he says.

Justice Department lawyers respond that the law was well within the power of Congress to enact. In court papers in the Florida case, they have described the law as “an important but incremental” extension of federal regulation of the health care market.

Supporters of the law say healthy people must be required to buy coverage to offset higher costs that insurance companies face under the new law — otherwise, insurance will be too expensive for everyone.

In addition, they argue that dismantling the statute would hurt the poor, and would be a first step in rolling back laws dating to the New Deal that have given the government broad authority to regulate the behavior of individuals and states.

“These lawsuits have been mounted by people whose objective is to change constitutional law,” says Simon Lazarus, public policy counsel for the National Senior Citizens Law Center, a non-profit legal and educational firm that advocates for low-income older adults. To hold that the health reform law is unconstitutional would require “massively consequential changes in the Constitution as it has been plainly understood.”

In-state disputes

In some states, Republican and Democratic officials are slugging it out over their differing stands on the lawsuits.

In Washington state, for example, the state Supreme Court next month will hear a case that seeks to force the state’s Republican attorney general, Rob McKenna, to withdraw from the multistate lawsuit in Florida.

The hearing was set after the Democratic city attorney for Seattle, Pete Holmes, complained that state law prohibits McKenna from representing Washington in court without the support of the governor. Washington’s Democratic governor, Chris Gregoire, opposes the lawsuit. McKenna, considered a frontrunner for the governor’s race in 2012, says the law is on his side.

In Iowa, Republican Brenna Findley is looking to unseat Democrat Tom Miller as attorney general, in part by vowing to join the Florida lawsuit if elected. This week, Findley is hosting Virginia Attorney General Ken Cuccinelli at several campaign events. “Ken has led the way in fighting the federal takeover of America’s health care system,” Findley says in a message to supporters on her campaign’s Facebook page. “Don’t miss this opportunity to speak to Brenna and Ken about this important issue!!”

Miller, a seven-term incumbent, says the case is weak and that joining the lawsuit would be a waste of resources. “Above all else, an attorney general has to follow the law and do things that are consistent with the law,” he says. “You don’t go ahead and file a lawsuit because you disagree with the policy.”

Even conservatives acknowledge that Congress has broad powers under the Constitution. But they say the authority kicks in only when there is already some ongoing activity to regulate.

“The Supreme Court has never said Congress has the power to make you engage in economic activity,” such as buying insurance, says Randy Barnett, a professor of constitutional law at Georgetown University Law Center in Washington.

States can require citizens to buy auto insurance or fire insurance for their homes — but that’s because they have broad police powers under the Constitution that Congress does not have, he says.

Sissel figures the auto insurance he is required to maintain under Iowa law will cover his medical bills if he gets in an accident. He’s prepared to cover other bills out of his own pocket.

Healthy and trying to start an art business, he thinks his decision is rational. “There are all sorts of tragedies that can befall us in life. We can’t spend all of our time worrying about the statistically improbable,” he says.

Defenders of the individual-insurance mandate say people who don’t carry insurance impose a cost on society. If people get sick and don’t have insurance, they say, the public will have to pick up the tab.

“People not buying health insurance …have not removed themselves from the marketplace. They have inserted themselves in the marketplace in perhaps the most aggressive way,” says Steven Schwinn, a law professor at John Marshall Law School in Chicago.

Medicaid costs at issue

Another point of contention involves the Medicaid expansion. Many states already spend a quarter or more of their budgets on Medicaid, and some fear the cost will rise dramatically as the new law takes hold.

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,” he says, “you can vitiate state sovereignty.”

But several studies have predicted the overall cost to the states will be relatively small compared with the huge influx of

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