McCollum's Frivolous Lawsuit

Florida Democratic Party Chair Karen Thurman released the following statement responding to Attorney General Bill McCollum's frivolous lawsuit against President Obama's historic health insurance reform law, the Patient Protection and Affordable Care Act:

"Because he has no plans to move Florida forward or bring jobs to the Sunshine State, Attorney General Bill McCollum has filed a frivolous lawsuit to block President Obama's historic health insurance reform - this is just another petty partisan ploy from a Washington politician.

"Bill McCollum has spent much of the last 30 years, since he was first elected to Congress in 1980, either ignoring the growing crisis in our healthcare system or fighting against commonsense solutions to cover the four million Floridians who lack health insurance. That's why Bill McCollum repeatedly voted to cut funding for Medicare in Congress.

"The fact of the matter is, health insurance reform that ensures security for those with insurance, coverage for more than 31 million Americans currently living without health care, and lower costs for everyone has passed in both chambers of Congress and been signed by the President. The people of Florida can't afford more delays, obstruction, or political stunts-they want reform implemented now.

"If Bill McCollum wants to deny middle class families and small businesses relief from soaring insurance premiums, seniors help in paying for their prescription drugs, or sick people a way to be insured once again, that's his choice to make-but he will find himself on the wrong side of Floridians.

"But it is unacceptable for AG McCollum to once again waste taxpayer dollars for his political stunts. Rather than filing politically-motivated lawsuits, McCollum needs to stop wasting our taxpayer money and start doing his job -- like cracking down on Medicaid fraud that is costing our state billions of dollars."

REPUBLICANS, BUSINESS AND CONSUMER GROUPS ALL SUPPORT FOR INDIVIDUAL MANDATE

NPR: "Hatch And Several Other Senators Who Now Oppose The So-Called Individual Mandate Actually Supported A Bill That Would Have Required It...'It Was Invented...[For] George Bush Sr. Back In The Day, As A Competition To The Employer Mandate Focus Of The Democrats At The Time.'" NPR's Julie Rovner reported: "For Republicans, the idea of requiring every American to have health insurance is one of the most abhorrent provisions of the Democrats' health overhaul bills. 'Congress has never crossed the line between regulating what people choose to do and ordering them to do it,' said Sen. Orrin Hatch (R-UT). 'The difference between regulating and requiring is liberty.' But Hatch's opposition is ironic, or some would say, politically motivated. The last time Congress debated a health overhaul, when Bill Clinton was president, Hatch and several other senators who now oppose the so-called individual mandate actually supported a bill that would have required it. In fact, says Len Nichols of the New America Foundation, the individual mandate was originally a Republican idea. 'It was invented by Mark Pauly to give to George Bush Sr. back in the day, as a competition to the employer mandate focus of the Democrats at the time.'" [NPR, 2/15/10]

Business And Consumer Groups All Support An Individual Mandate For Obtaining Health Care. "Support grew on Friday for insurance industry demands that all Americans be required to obtain coverage as part of a planned healthcare system overhaul, with a senior Senate Democrat and a coalition of business and consumer groups promoting the idea. ... The coalition includes groups such at the AARP, which represents older Americans, the American Hospital Association, America's Health Insurance Plans industry group, the healthcare advocacy group Families USA, the Business Roundtable and the U.S. Chamber of Commerce." [Reuters, 3/27/09]

Frist Supported Individual Mandate: "I Believe In Limited Government And Individual Responsibility...[But] It Is Time For An Individual Health Insurance Mandate." In an op-ed, former Senate Majority leader Bill Frist wrote, "I believe in limited government and individual responsibility, cherish the freedom to choose, and generally oppose individual mandates-except where markets fail, individuals suffer, and society pays a hefty price. Let's face it, in a country as productive and advanced as ours, every American deserves affordable access to healthcare delivered at the right time. And they don't have it today. It is time for an individual health insurance mandate for a minimum level of health coverage. Catastrophic coverage would be an appropriate place to start." [US News & World Report Opinion, 9/29/09]

Sen. Frist Voiced Strong Support For Individual Mandate. Former Senate Majority Leader Bill First told Time magazine that, "he strongly supports other aspects of the bill--most notably, its requirement that individuals be required to purchase coverage, if they do not receive health insurance through their employers or under government programs." [Time, 10/2/09]

Sen. Grassley: "I Believe That There is a Bipartisan Consensus to Have Individual Mandates." "'Individual mandates are more apt to be accepted by a vast majority of people in Congress than an employer mandate would be, as an example,' Grassley said. 'I believe that there is a bipartisan consensus to have individual mandates.'" [Bloomberg, 6/14/09]

CONSTITUTIONAL EXPERTS SAY THAT INDIVIDUAL MANDATE IS CONSTITUTIONAL AND THAT THE SUPREME COURT WOULD CERTAINLY UPHOLD IT

Yale Law School Constitutional Scholar: "The Supreme Court Will Almost Certainly Uphold The [Individual Mandate]...To Strike Down The Individual Mandate, It Would Have To Reject Decades Of Precedents. It Is Very Unlikely [That The Court Would Stage] Such A Constitutional Revolution." Jack M. Balkin, J.D., Ph.D., Knight Professor of Constitutional Law and the First Amendment of the Yale Law School wrote in the New England Journal of Medicine: "The individual mandate taxes people who do not buy health insurance. Critics charge that these people are not engaged in any activity that Congress might regulate; they are simply doing nothing. This is not the case. Such people actually self-insure through various means...Moreover, like people who substitute homegrown marijuana or wheat for purchased crops, the cumulative effect of uninsured people's behavior undermines Congress's regulation - in this case, its regulation of health insurance markets. Because Congress believes that national health care reform won't succeed unless these people are brought into national risk pools, it can regulate their activities in order to make its general regulation of health insurance effective. One final argument against the individual mandate is that it violates the Fifth Amendment by allowing the government to take property without just compensation. 'Takings' occur when the government seizes property from particular individuals...The individual mandate is just such a tax - not a taking. Although opponents will challenge the individual mandate in court, constitutional challenges are unlikely to succeed. The Supreme Court will probably not even consider the issue unless a federal court of appeals strikes the tax down. In that unlikely event, the Supreme Court will almost certainly uphold the tax, at least if it follows existing law. To strike down the individual mandate, it would have to reject decades of precedents. It is very unlikely that there are five votes on the current Court for staging such a constitutional revolution." [New England Journal of Medicine, 1/14/10]

Stuart Taylor: Most Experts Agree That The Individual Mandate Is Constitutional. "A healthy 20-something might ask: Can the government really order me to spend more than $5,500 a year to buy comprehensive health insurance just because I live in the United States, even though the most I might need or want is catastrophic coverage costing less than $800? Can they really force me to pay a big penalty 'tax' if I won't buy government-approved insurance? And can they use my money to subsidize people who are twice my age, and obese or sick, even if they have more money than I do? The answers are yes, yes, and that's the point! according to most of the experts who have weighed in on whether the Supreme Court would uphold a mandate for individuals to buy comprehensive health insurance unless they're already covered by employer-based plans. They cite the justices' very broad reading since the New Deal of Congress's powers to regulate interstate commerce and to tax and spend." [Stuart Taylor, National Journal, 12/12/09]

David Frum: Health Reform Is "Unquestionably Constitutional. The Federal Government Already Requires Every American To Purchase Health Insurance. That's What Medicare Does." David Frum wrote: "Is the Obama-Reid health reform plan unconstitutional? The answer to that should be obvious: the Reid-Obama plan may be unwise, unsound, and unaffordable ... but it is unquestionably constitutional. The federal government already requires every American to purchase health insurance. That's what Medicare does. The difference now is that everyone will be required to buy a private plan to cover them up to age 65 in addition to the government-run plan they are compelled to buy to cover them after 65. I don't hear anyone in Congress suggesting that Medicare violates the Constitution. So how can the new plan be unconstitutional if the old plan is OK?" [David Frum, 12/26/09]

Prof. Schwinn Of U. Chicago: "Whatever The Merits Of The Policy Arguments Against An Individual Mandate, These Commerce Clause Arguments...Do Not Render Them Unconstitutional." Steven D. Schwinn, Associate Professor of Law at the University of Chicago Law School examined claims that health reform and in particular individual mandates would be unconstitutional: "Whatever the merits of the policy arguments against an individual mandate, these Commerce Clause arguments based on 'state sovereignty' and lack of economic activity do not render them unconstitutional." [Constitutional Law Prof. Blog, 12/4/09]

Prof. Mark Hall: Unconstitutional Argument "Is Unconvincing And Deeply Flawed...There Is No Fundamental Right To Be Uninsured, And So Various Arguments Based On The Bill Of Rights Fall Flat." Mark A. Hall wrote on the Seton Hall University School of Law, Health Law & Policy Program blog: "Is it unconstitutional to mandate health insurance? It seems unprecedented to require citizens to purchase insurance simply because they live in the U.S. (rather than as a condition of driving a car or owning a business, for instance). Therefore, several credentialed, conservative lawyers think that compulsory health insurance is unconstitutional. See here and here and here. Their reasoning is unconvincing and deeply flawed...Under both liberal and conservative jurisprudence, the Constitution protects individual autonomy strongly only when 'fundamental rights' are involved. There may be fundamental rights to decide about medical treatments, but having insurance does not require anyone to undergo treatment. It only requires them to have a means to pay for any treatment they might choose to receive. The liberty in question is purely economic and has none of the strong elements of personal or bodily integrity that invoke Constitutional protection. In short, there is no fundamental right to be uninsured, and so various arguments based on the Bill of Rights fall flat." [Seton Hall University School of Law, Health Law & Policy Program, 8/25/09]

Prof. Hall's Georgetown University Paper: "The Constitution Permits Congress To Legislate A Health Insurance Mandate." Prof. Mark Hall concluded in his paper published by the Georgetown University O'Neill Institute for National and Global Health Law: "The Constitution permits Congress to legislate a health insurance mandate. Congress can use its Commerce Clause power or its taxing and spending powers to create such a mandate. Congress can impose a tax on those that do not purchase insurance, or provide tax benefits to those that do purchase insurance." [Georgetown University paper: The Constitutionality of Mandates to Purchase Health Insurance, February, 2009]

Prof. Dorf Of Cornell University Law School On Individual Mandate: No Different Than Federal Mandate To Compel Citizens To Jury Duty, No Different From States Imposing An "Affirmative Obligation" On Parents To Educate Their Children. "The CBO memo claims, then, that an individual mandate would be unique because it would impose an affirmative obligation on persons. Most laws either forbid some form of conduct (say, bank robbery) or impose restrictions as conditions on activities that the government could forbid altogether (say, by requiring that companies that are engaged in various lines of business comply with environmental laws, or that professionals pass licensing examinations). As the CBO memo states: 'Federal mandates that apply to individuals as members of society are extremely rare.' The only one that the CBO staff could think of was the requirement that draft-age men register with the Selective Service System...To begin, the CBO memo's authors apparently forgot about jury duty. A federal statute that was already in effect in 1994 provides that 'all citizens shall have . . . an obligation to serve as jurors when summoned for that purpose.'...Consider that every state imposes an affirmative obligation on parents to educate their children--whether in public school, private school, or via home schooling. Surely this obligation cannot be said to be a mere condition on the privilege of raising children, for the state has no authority to prevent people from becoming parents." [FindLaw, 10/21/09]

Prof. Dorf Of Cornell University Law School: "The Individual Mandate Is...Constitutional." Professor Michael Dorf of the Cornell University Law School wrote: "the individual mandate is 'plainly adapted' to the undoubtedly legitimate end of regulating the enormous and enormously important health-care sector of the national economy. It is therefore constitutional." [FindLaw, 11/2/09]

Prof. Shapiro Of Emory University School Of Law: "Whatever One Thinks Of The Wisdom Of The Individual Mandate...It Would Be Surprising If The Constitution Prohibited A Democratic Resolution Of The Issue. Happily, It Does Not." Sen. Max Baucus noted that: "Robert Shapiro, Professor of Law at Emory University School of Law, stated: 'Whatever one thinks of the wisdom of the individual mandate, or of health care reform generally, it would be surprising if the Constitution prohibited a democratic resolution of the issue. Happily, it does not.'" [Statement by Sen. Baucus, 12/22/09]

Constitutional Law Prof. Schwinn: Claim That Individual Mandate Is Unconstitutional Is "Wrong...An Individual Mandate Is Almost Certainly The Kind Of Economic Activity That The [Supreme] Court Would Uphold Under Congress's Commerce Clause Authority." Prof. Steven D. Schwinn of the University of Chicago Law School critiqued an opinion piece in the Wall Street Journal by David Rivkin and Lee Casey arguing that the individual mandate provision was unconstitutional: "The authors are wrong on two counts. First, an individual mandate is almost certainly the kind of economic activity that the Court would uphold under Congress's Commerce Clause authority under Raich, Lopez, and United States v. Morrison. These cases allow Congress to regulate activities that have a "substantial effect" on interstate commerce, and they look to the commercial nature of the activity and to the connection between the activity and interstate commerce (among other considerations). An individual mandate is almost surely commercial in nature--in requiring folks to buy health insurance, it requires a commercial exchange. Rivkin and Casey argue that the mandate is not commercial in nature, because it's triggered simply by 'being an American.' This may be true, but it misses the point of the regulation: It requires Americans to engage in a commercial exchange. This is the definition of commerce...The Supreme Court may be on a path to limiting congressional authority under the Commerce Clause, the Taxing Clause, or any clause. But even so, the individual mandate all too squarely falls within the recent and settled jurisprudence." [Constitutional Law Prof. Blog, 9/25/09]

Prof. Mark Hall Of Wake Forest University School Of Law: There Are No Plausible Tenth Amendment Or States' Rights Issues Arising From the Imposition By Congress Of An Individual Responsibility To Maintain Health Coverage." Sen. Baucus said in a statement: "I refer my colleagues to an article by Mark Hall, law professor at Wake Forest University. Professor Hall's article is a comprehensive, peer-reviewed analysis of the constitutionality of a Federal individual responsibility requirement. In it, Professor Hall concludes that there are no plausible Tenth Amendment or States' rights issues arising from the imposition by Congress of an individual responsibility to maintain health coverage. Professor Hall notes further that health care and health insurance both affect and are distributed through interstate commerce. And that gives Congress the power to legislate a coverage requirement using its Commerce Clause powers. Professor Hall notes that the Supreme Court indicated in its decisions in United States v. Morrison and United States v. Lopez - two other cases relied on by the other side - that the non-economic, criminal nature of the conduct in those cases was central to the court's decisions in those cases that the Government had not appropriately exercised power under the Commerce Clause. Health insurance, on the other hand, does not deal with criminal conduct." Prof. Mark Hall wrote, "[p]erusing some of [the Senate health reform bill's] 2000 pages, I came across the following, SEC. 1501 (p. 320), which should put to rest any argument that an individual mandate exceeds Congress' powers under the Commerce Clause." [Statement by Sen. Baucus, 12/22/09; O'Neill Institute for National and Global Health Law, 11/24/09]