Bill McCollum: Florida to Sue Over Health Care Reform

Florida's Attorney General
Attorney General Bill McCollum
TAMPA (2010-3-22) -

It didn't take long for the political fallout to spread from the passage of the national healthcare bill. Florida's attorney general says he plans to sue the federal government.

Attorney General Bill McCollum says he intends to file suit in the northern District of Florida after President Obama signs the healthcare bill into law. He says there's two legal reasons to do so.

"The law is unconstitutional because it requires an individual to buy a health insurance policy - and if they don't do it, they're going to get penalized with a fine or a tax," McCollum said.

"And the fine or the tax for doing nothing but living. There's no commerce, there's nobody buying a car... this is tax or a penalty for just living. And that's unconstitutional," he said.

McCollum says he will be joined by attorneys general in at least nine other states.

His main argument revolves around what is called the commerce clause of the Constitution. It grants Congress the power to regulate commerce among the states. But insurance contracts have not traditionally been considered to be commerce, so that has been regulated by the states.

"The bill will violate the 10th amendment to the Constitution by manipulating the states in terms of their having to comply with things that are beyond the sovereign protections that are given there, in terms of going far beyond an unfunded mandate," McCollum said, "by requiring them to do things that are virtually impossible to do, in terms of budget and cost.

There is an active debate among constitutional scholars over whether McCollum has a case.

"I'm just not sure that the issue of requiring insurance is the proper way to attack the viability of the new health care plan," said Charles Rose, an associate Professor of Law at Stetson University College of Law in Gulfport.

He says there are other cases nationwide that might nullify McCollum's legal argument

"Look at jurisdictions like Massachusetts, where they require you to buy health insurance," says Rose. "It's a regulatory function of the state, and I'm not sure that just on the issue of a requirement to purchase insurance, you've got anything from a Constitutional perspective.

"The issue that's it's unconstitutional because it just requires you to purchase insurance - well if that was the case, we would have had several statutes declared unconstitutional a long time ago."

But other constitutional scholars say the new law is is unprecedented. That's because it would extend the commerce clause's power beyond economic activity, to economic inactivity.

McCollum is also running for governor on the Republican ticket, which has invited charges of political partisanship.

University of South Florida political science professor Susan MacManus says it's part a longstanding battle between the states and the national government - one that's been intensified by the funding of major entitlement programs, including Medicaid.

"But there's some reality to these attorneys generals' battles here," says MacManus. "And it tracks back to money, as many things often do. The cost - the unfunded mandate portion of some of the legislation is one of the underlying factors causing even Democratic governors and attorney generals to question Congress' authority in this area."

McCollum denied politics is the reason for his lawsuit. He says he has a duty "to protect an unconstitutional invasion of the state, if you will, by the federal government."

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