Suit to Overturn Obamacare Hears First Arguments

Tuesday, 14 Sep 2010 02:39 PM

By David A. Patten

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All eyes will be focused on a Pensacola, Fla., courtroom Tuesday as Justice Department lawyers try to convince a federal district court judge to throw out a lawsuit by 20 states alleging that President Obama's healthcare reforms are unconstitutional.

Leading the multistate lawsuit is Florida Attorney General Bill McCollum, a Republican.

The Obama administration has claimed that the states have no legal standing to bring their legal action.

The central issue in the hearing: whether the states are legally empowered to challenge the fines in the individual mandate that gives Obamacare its bite.

In an exclusive Newsmax.TV interview, McCollum says the federal government has exceeded its constitutional authority.

"We are arguing that it's unconstitutional for the federal government to tell you, if you are just sitting in front of your TV set, or doing nothing in the way of real economic activity, that you have to buy a health insurance policy or pay a penalty," McCollum tells Newsmax.

"That's just not in the Constitution," he adds. "The Founding Fathers didn't enumerate any powers that appear to us to give them the right to say this."

Story continues below.



The stakes could hardly be higher.

If the administration prevails, it would deal a major blow to conservatives' hopes of using the courts to block the administration's signature piece of legislation.

If the judge rejects the administration's motion, it would mark the second time in as many months that anti-Obamacare forces have won a major court battle on the unpopular bill that most Democrats would prefer voters forget.

The federal government is expected to argue that the "individual mandate" — essentially a demand that every citizen buy private health insurance or suffer a fine levied by the IRS — is actually a tax. Only taxpayers can argue the legality of a tax, they contend, and even then only after the assessments take effect in 2015.

The administration also will cite its constitutional authority to regulate interstate commerce, along with its responsibility to provide for the public's general welfare.

Those are the same arguments the federal government made in a Virginia hearing on the other state-level lawsuit filed against healthcare reform, which Virginia GOP Attorney General Ken Cuccinelli filed.

After hearing from both sides in that case, federal Judge Harry E. Hudson in August rejected the federal government's request to have the case dismissed.

Virginia's case, however, was bolstered by a law the Old Dominion adopted making it illegal to require its citizens to buy health insurance.

"Unquestionably, this regulation radically changes the landscape of health insurance coverage in America," Hudson wrote in his 32-page opinion.

Hudson also said the federal government's authority to regulate commerce had never been extended so far before.

McCollum says the penalty the federal government seeks to impose is not a tax.

"Even if it's a tax, we think there's no provision in the Constitution allowing this kind of tax," McCollum tells Newsmax. "When President Obama advocated this legislation, he said there was no tax involved in it. So the government's being a little disingenuous, but they're going to make that kind of an argument in this hearing."

McCollum estimates the expansion of Medicaid in the president's healthcare reforms will cost Florida $1 billion a year. He says he feels "pretty confident" that the judge will allow the case to move forward.

Two taxpayers as well as the nation's leading small-business lobby, the National Federation of Independent Business, have joined his lawsuit. If any one of them is found to have standing, McCollum says, the entire lawsuit would move forward.

McCollum says the healthcare reform legislation could be especially vulnerable once the case reaches the trial phase, because Democrats did not place a severability clause in the bill. That's a common boilerplate provision included in many Congressional bills stipulating that if one provision of a new law is ruled illegal, the remaining parts of the legislation remains in force.

"It certainly is a fact that they have no severability clause," McCollum says. "If at any time we win on any portion of this, then the whole law goes down. I think that the courts are going to look at this as more of a whole. They're going to say, 'How is this all going to interplay?'"

According to The Associated Press, some legal experts believe the 20 states will find it difficult to persuade the judge they have been harmed by a law that won't take effect for years. But the business federation says several of its members already have suffered because their insurance companies altered policies and even discontinued them in anticipation of the new law's taking effect.

"We would agree with the government that the individual mandate is the key to the entire healthcare law," said federation Executive Director Karen Harned. "But we think the entire healthcare law is bad."

Tuesday's hearing is scheduled to begin at 9 a.m., and each side will have 45 minutes to present its case before U.S. District Judge Roger Vinson.

Vinson is not expected to announce his ruling tomorrow. Both sides in the dispute have indicated the case will eventually come before the U.S. Supreme Court — perhaps before the 2012 presidential election.




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