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McCollum's health care challenge now in hands of federal judge in Pensacola

PENSACOLA — Likening it to a watch that needs all of its gears to keep time, U.S. District Judge Roger Vinson on Thursday questioned whether it's possible to strike down any part of the new federal health care act without dismantling the whole law.

His remarks came during a three-hour hearing in the historic lawsuit brought by Florida Attorney General Bill McCollum challenging the federal Affordable Care Act.

Florida was joined by 19 other states and the National Federation of Independent Business in the case, arguing that the federal law is unconstitutional because it forces people to buy insurance or pay a fine, and violates states' rights by burdening them with an expanded Medicaid program.

This week a federal judge in Virginia ruled that the so-called individual mandate is unconstitutional, but rejected arguments that the ruling invalidated the entire law.

Both cases are likely to end up being appealed all the way to the U.S. Supreme Court.

Vinson, who was appointed to the federal bench by Republican President Ronald Reagan, fretted about forcing people to purchase health insurance. At the close of the three-hour hearing, he said he would make a decision on the case as soon as possible, but didn't give a date.

As he listened to arguments, Vinson said at one point that for a time he didn't have insurance, but still got health care, paying for it out of pocket.

"People still do that," he said.

He also questioned the lack of an option for getting just catastrophic insurance, saying that the law requiring people to have basic coverage is similar to using automobile insurance to pay for oil changes and tire rotations.

"There are lots of alternative ways to provide health care without imposing on the individual liberties and freedom of choice,'' he said.

Arguing for the federal government, U.S. deputy assistant attorney general Ian Gershengorn said that the law is constitutional because even the uninsured use health care, and that has a commercial impact. "If you participate in a market, Congress can regulate you," he said. "The uninsured continue to participate in the health care market."

Everyone eventually seeks health care, he said. And if they don't have the money to pay for it, the burden is shifted to other people, which is another reason Congress has the power to require health care coverage.

The health insurance debate isn't about a product, but a means of financing a service that everyone seeks out, and that is a power given to Congress, Gershengorn said.

Blaine Winship, special counsel for the Florida Attorney General, and outside counsel David Rivkin, argued for the plaintiffs.

Rivkin said health care is a choice, and letting the federal government force people to buy insurance would pave the way for other requirements, such as forcing people to exercise, join a gym or eat broccoli. "An infinite number of mandates will be entirely supportable," Rivkin said.

Winship and Rivkin suggested that Congress' real goal is to achieve universal health care.

No previous Congress has ever tried to accomplish a goal, no matter its merits, by forcing people to engage in commercial activity, Rivkin said, deeming it a "truly radical" interpretation of Congress' powers.

Regarding Medicaid, Winship said the law turns it into "Medicaid on steroids" by, among other things, including childless adults and increasing the income limits, making it a program the states never agreed to. "Their budgets are headed for the cliff," he said.

Vinson, though, repeatedly pointed out that states don't have to participate in Medicaid, which is funded by both the federal government and the states.

Winship replied that states couldn't realistically opt out. If they did, the neediest would be "left out in the cold" without coverage, he said. "Congress knew the states were stuck," he said.

Gershengorn said Congress has frequently expanded access to Medicaid to reach more of the medically needy, and multiple challenges have been rejected. The changes made now, he said, are not "transformative."

"These arguments are preposterous," he said, noting that the new people covered are definitely medically needy. "These are people making $14,000 a year," he said. "The states are coming in here and saying those people aren't needy?"

At a news conference after the hearing, McCollum acknowledged the states' argument against Medicaid expansion is difficult because it's unprecedented. But with the program so entrenched and the new costs so high, the new law has put states in an impossible situation.

"States simply can't walk away from it. And that goes to the question, is this really voluntary or not," he said. "It's a 10th Amendment question. How far can the federal government go?"

McCollum said states should be allowed to devise their own solutions. "Let us make those decisions within our capabilities,'' he said. "Don't tell us what to do in a way that is violative of the Constitutional rights of the individuals and violative of the sovereignty of the states."

The huge costs will force states to raise taxes or cut other programs, he said. "The governments are going to take it out of the hides of education and prisons and other places that are vital services. We don't have any other place to take it from."

Texas Attorney General Greg Abbott pointed out that many people, such as young adults and the very wealthy, prefer not to have health insurance.

"This ultimately is about freedom. This is the biggest encroachment upon our freedom that Congress has ever levied," he said.

Florida state Rep. Rick Krisemman, a Democrat from St. Petersburg, issued a statement accusing McCollum of playing partisan politics with the lawsuit, saying it is wasting taxpayer dollars "on thin legal ground,'' and threatening to ''unravel historic advancements in health care for all Americans."

McCollum dismissed this.

"It's not a political thing. It's a legal matter," he said, noting that one Democratic attorney general had joined the case.

If the law sticks, McCollum said, Florida's Medicaid rolls will swell by nearly 2 million people and cost $1 billion.

"It's a very unfunded mandate. It's the biggest one in history," McCollum said. "It's an enormous burden on the states that they never agreed to, never could have imagined and they are being compelled to do."

McCollum's health care challenge now in hands of federal judge in Pensacola 12/16/10 [Last modified: Thursday, December 16, 2010 11:13pm]
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