Monday, 13 Sep 2010 08:11 PM
By: David A. Patten
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."
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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