TALLAHASSEE — The political sea change marked by the November elections on Tuesday pulled six more states into Florida's lawsuit challenging the national health care legislation, making it one of the biggest tests of federal authority in the country's history with 26 states now in line.
On the same day the U.S. House of Representatives began debating repeal of the law, Florida Attorney General Pam Bondi filed a motion in Pensacola federal court adding Iowa, Ohio, Kansas, Wyoming, Wisconsin and Maine to the list of plaintiffs.
The new states are ones where Republicans replaced Democrats in the offices of attorney general or governor, with several of them making good on campaign promises to fight the legislation.
"It sends a strong message that more than half of the states consider the health care law unconstitutional and are willing to fight it in court," Bondi said in a prepared statement. "I look forward to continuing to defend Florida's families and businesses against this unconstitutional law and upholding the Constitution."
The suit argues the law violates the commerce clause of the Constitution by forcing people to buy health insurance or pay a penalty. It also targets the costly expansion of Medicaid, saying that infringes on states' rights.
Opponents of the law are fighting on two fronts: in court and in Congress. But with a legislative repeal unlikely to advance past the House, the real battle will be fought in the courts. Virginia has its own lawsuit and Oklahoma plans one, too.
As the issue swirls nationally, the Center for American Progress, a Washington, D.C.-based liberal-leaning think tank, issued a statement Tuesday signed by more than 125 legal scholars saying the law is constitutional.
"This law is a tax law," said Adam Winkler, a law professor at UCLA. "The minimum coverage provision requires that you either go out and have health insurance or that you pay a tax penalty. The Supreme Court has held consistently for 200 years that Congress' power to tax for the general welfare is very, very broad. And any time Congress has a rational basis to believe the tax raises revenue and furthers the general welfare, that law is constitutional."
Opponents of the legislation call it a penalty or a fine, Winkler said, but it's clearly a tax because it's imposed only on taxpayers, collected by the IRS and payable through tax filings.
Winkler also scoffed at the widely circulated argument made by opponents that if the federal government can force people to buy health insurance, it can force people to eat broccoli to stay healthy.
"Any link between eating broccoli and the financial stability of the health care market is so attenuated it's laughable," he said. "The Supreme Court would strike down a law requiring you to eat broccoli in a heartbeat."
Former Florida Attorney General Bill McCollum along with 12 other state attorneys general filed the lawsuit in March 2010 moments after President Barack Obama signed the health care bill. By the time oral arguments were made Dec. 16 in Pensacola, 20 states had joined the suit.
A ruling is expected in the coming weeks, but the case is likely to be appealed to the U.S. Supreme Court. The number of states involved, though, should be irrelevant to the high court, said Joseph W. Little, professor emeritus at the University of Florida law school.
"There is a very legitimate legal issue that has to be decided by the Supreme Court. But you don't need 25 people there stating that," he said. "One or 25 or 50 should be the same to the Supreme Court."
The large number of states joining, he said, is a symptom of the sweeping victories by Republicans in November and the influence of the tea party movement.
"It may well have been that without this political aspect that a lot of state attorneys general would just be saying, 'Thattaboy, go get 'em, but I don't need to spend my resources joining this lawsuit,' " he said. "I perceive this snowball joining in to be a political thing."
Carol S. Weissert, a political science professor at Florida State University and editor of a scholarly journal on intergovernmental relations, called the lawsuit one of the most significant instances of states fighting the federal government since Brown vs. Board of Education in 1954, the landmark case that deemed it unconstitutional for states to segregate schools.
"Certainly in the last few decades, this case is the most important one in terms of federalism," she said. "It has such strong state support, and we've been trying to deal with national health insurance for half a century. And then it really has some potential in terms of the federal-state balance."
Multiple states have joined together before to sue the federal government over issues such as auto emission standards and abortion laws. But this case has attracted an unusually large number of states. And most cases in which states sue the federal government are settled before reaching the U.S. Supreme Court.
"In terms of both the subject matter and the number of states and the potential precedent and this federal-state balance, this case is extremely important," she said. "The states are saying the federal government has overstepped its authority, and we're not going to put up with that. If the Supreme Court agrees, you'll see more of the these cases."
Janet Zink can be reached at firstname.lastname@example.org or (850) 224-7263.