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From the staff of the Tampa Bay Times

McCollum denies politics behind health care lawsuit, 'This bill is wrong'




Florida's Republican Attorney General Bill McCollum formally announced today that he'll challenge the constitutionality of the new health care bill to be signed into law by President Obama.

The lawsuit, to be filed as early as tomorrow, would be joined by several other states, including South Carolina, Utah, Nebraska, South Dakota, North Dakota, Texas, Alabama, Pennsylvania and Washington.

The rub: The plan includes an "individual mandate" requiring most Americans to carry health insurance or face a fine. "This is a tax or a penalty on just living. And that's unconstitutional," McCollum said in a news conference this morning. "There is no provision in the Constitution of the United States giving Congress the power to do that. So it's the absence of authority that is unconstitutional."

"No politics involved with this whatsoever," he said. "This bill is wrong."

McCollum, a former congressman, said a second problem is that is "manipulates" the states to get them to do things the federal government cannot do itself and would require the use of state money to cover an expansion of Medicaid.

UPDATE: The section below has been altered. Professor Barnett wrote the Buzz this afternoon to say his piece had been taken out of context and that he thinks McCollum does have some merit.


Georgetown Law professor Randy E. Barnett wrote in the Washington Post, "While such provisions may have a political impact, none is likely to have any effect on the legislation's constitutionality. Under the 10th Amendment, if Congress enacts a law pursuant to one of the "powers . . . delegated to the United States by the Constitution," then that law is supreme, and nothing a state can do changes this. Any state power to "nullify" unconstitutional federal laws has long been rejected."

But Barnett said his comments should in no way be linked to McCollum's arguments, noting that was about state sovereignty. Here's what he says about the commerce argument.

[T]he Supreme Court has long allowed Congress to regulate and prohibit all sorts of "economic" activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that's how the court would probably view the regulation of health insurance.

But the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

Barnett tells the Buzz, "I think the first of these arguments has merit as I so argued in a legal memo for the Heritage Foundation. I have given no consideration to the second of these arguments, and was not certainly commenting on it in my Washington Post op-ed."

[Last modified: Thursday, September 9, 2010 12:31pm]


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