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Oral arguements over healthcare law start this week

By Regan McCarthy


Tallahassee, FL –
Oral arguments for Florida's lawsuit against the Federal Health Care act begin next week. The case is one of several efforts to protect Floridians from a law some say is unconstitutional, but Regan McCarthy reports finding a way to avoid the law is not so simple.

The Federal Health care act includes a stipulation or mandate requiring citizens to have or get health insurance by 2014. It's a rule put in place for the purpose of promoting public health and reducing the number of tax dollars the government spends bailing out uninsured Americans. But Florida Attorney General Pam Bondi says the provision is unconstitutional.

"The federal government is saying that based on simply being alive, not purchasing anything, by sitting on your couch you are forced to purchase a product or a good. And that is not under the, it far exceeds anything under the commerce clause and there is not a case on point that says that the Federal government can do this."
And the state has filed a suit against the federal government making just that claim. Florida is leading a group of about 25 states in a lawsuit against the federal government. It's the largest case of its kind, but not the only one. Oral arguments for a similar suit have already begun for a case from Virginia and Bondi says so far, things are looking good.

"And from there we're going to the U.S. Supreme court ultimately. The 11th Circuit is a pass-through we're going to end up in the supreme court and I am certain that it is unconstitutional and we're going to do our best to fight for the citizens of our state and our country."

Florida has also requested a waiver from the health care act that would give the state the ability to opt out of specific aspects of the bill. And voters will have the opportunity to amend the state's constitution with an article that purports to prevent another provision. Essentially, the state has taken every step available to stop the Federal act. But, Health Program Director at the National Conference of State Legislators Richard Cauchi points out such action taken by a state is not representative of the state. He uses his home-state of Colorado as an example:

"In this state, the attorney general who happens to be a Republican, is a party to the lawsuit. The governor is strongly supportive of the law and doesn't agree with that so even the executive branch in a state may be split. So using Colorado just as some example you can't really say well Colorado is opposed to the law or supportive of the law."

Cauchi's example does not reflect the situation in Florida. Here the executive branch is in agreement and a Republican super-majority stands against the measure. But then, even in Florida, there are state leaders who support the federal act. Democratic Florida House Representative Michelle Rehwinkle Vassilinda of Tallahassee says she supports the law and wonders if those supporting the amendments and lawsuit know what they stand to lose.

"I don't think people know what this act is doing for them and can do for them and we haven't had enough time go by. I think the process is so important. And it can be argued that what the Republicans are doing is part of the process too, but part of the process is congress put forward an act that was an attempted solution to a problem. Let's see if it works or not."

And that's one of the questions that remains to be seen. What happens if Florida wins the lawsuit? What purpose does the proposed constitutional amendment serve and what do Floridians stand to gain or lose? Florida State University Law Professor Jim Rossi says as far as the law suit goes it all depends on how the courts decide what congress meant by the law. For example, in Florida, the arguments have been heard twice already. One judge ruled the mandate that people by health insurance to be unconstitutional saying thus the entire law is unconstitutional. Another found only the mandates to be unconstitutional, and ruled the rest of the law could stand. Rossi says the rulings relate to the severability doctrine.

"Basically can you sever, can you take away that part of the statute and still have the statute operate the way congress intended."

And Rossi says the methodology for determining severability is unclear. Generally, he says a decision is made by considering whether congress has specified severability through a severability clause. He predicts the supreme court will require clear evidence before striking the entire law.

"I don't know where the clear evidence is. I think if you look at judge Vincent and you look at arguments that the portions of the statue are not severable, what the courts have had to do is engage is a series of counter-factuals or hypothetical questions regarding what congress would have intended if a judge struck down this portion of the statue. And that sort of hypothetical conjecture about congresses intent is not something that I think the present supreme court is likely to endorse as an approach to determining severability."

Rossi says he's skeptical the entire statute will be found unconstitutional and beyond that he says he's not convinced even the provision in question will be found unconstitutional. That still leaves the question of a state amendment.
If mandates in the Federal act are stricken, then amending the state's constitutional to bar the rule would keep such a law from being created by state leaders. But if the law is found to be in solid constitutional standing, then because federal law supersedes state law amending the constitution would serve no legal purpose. So what would it do? Here's Bondi's answer.

"What is shows is support from our House and our Senate and lawmakers and our state for what we're doing."

Rehwinkle Vassilinda says the amendment's purpose is something else .

"It's going to be the a rallying cry for the Tea Party people, for the far right, for people who are going to be able to get revved up, to get to the polls, about this kind of thing. It is one of those pieces it's the red meat that thrown out to the far side of the Republican party to say oh no, we don't want this.'"

She says it's a political game played by both parties, but one she says it's time to stop. Circuit Judges in Atlanta are set to hear Florida's arguments against the Federal Health Care Act June 8. Bondi says she anticipates the case moving to the Supreme Court soon after that.