December 6, 2010

Incoming AG weighs fight over health reform

William Schneider believes the Affordable Care Act is unconstitutional. Others say a lawsuit is a futile gesture.

By Tom Bell tbell@pressherald.com
Staff Writer

AUGUSTA - Maine's incoming attorney general believes federal health care reform is unconstitutional and is weighing whether the state should join a pending lawsuit in Florida that is challenging it on constitutional grounds.

William Schneider, the Durham Republican elected attorney general by the Legislature on Wednesday, said in an interview that the Affordable Care Act, signed by President Obama in March, violates the U.S. Constitution by requiring people to buy insurance or face an annual fine of $695.

There are no provisions in the Constitution that give the federal government that kind of power, he said.

Designed to help millions of uninsured Americans obtain affordable health care through government-imposed mandates and subsidies, the law is a "noble effort doomed by its failures," said Schneider, who currently is an assistant U.S. attorney.

Schneider is also a former assistant attorney general and served as a lawmaker for two terms, during which he served as assistant House minority leader.

The Affordable Care Act has also been derisively labeled "Obamacare" by Republicans, who liken it to socialized medicine and warn it will drive up medical costs and burden taxpayers.

About two dozen challenges have been filed in federal courts nationwide.

The lawsuit Maine may join was filed in U.S. District Court for the Northern District of Florida and now has the support of 20 states.

It's seen as the Republicans' best chance for success because of the conservative record of the Florida court.

Two other courts -- in Michigan and Virginia -- have already made preliminary rulings in favor of the Obama administration.

David Crocker, an attorney at the Maine Heritage Policy Center, a conservative think tank, said he is pleased Maine might become a party in the legal challenge of the health care law.

"This is a fight worth having because it has to do with the sovereignty of states," he said, "and not surrendering to the will of the federal government."

On Thursday, Republican Gov.-elect Paul LePage told MaineToday Media that he will ask Schneider to join the health care reform lawsuit against the federal government.

Dan Demeritt, LePage's spokesman, said joining the case would not be a superfluous gesture.

"You represent 1.3 million people," he said, "and if there is a case to be made, you voice your opinion and join that fight."

LePage also said he recently learned that if 35 states join the lawsuit, the law "dies, automatically."

Not true, according to outgoing Attorney General Janet Mills.

"That's not the law," she said. "A congressional act does not get voided or overturned simply because a certain number of state officials join some lawsuit. I don't know what he's talking about."

Reached Sunday evening, Demeritt said LePage was speaking about a long-shot Repeal Amendment proposed last week by U.S. Rep. Rob Bishop, R-Utah, and that LePage understands that it is not current law.

For years, Maine has been a leader in its work to expand access to health care, said Sara Rosenbaum, chairwoman of the health policy department at George Washington University.

It's hard to believe that Maine would now join the legal fight against the Affordable Care Act, she said.

"It's like whiplash," she said of Maine's policy change on health care after Republicans gained control of both the state's Legislature and executive branch in November. "I mean, it's an astounding turn of events."

Maine's opposition to health care reform is not confined to Augusta. U.S. Sens. Olympia Snowe and Susan Collins, both Republicans, have signed on to an amicus -- or friend of the court -- brief supporting the Florida lawsuit as well.

If the law is overturned, said Rosenbaum, Maine would be especially hurt because it has a large percentage of working families who don't have health insurance and who would be given access to affordable insurance by the law.

The plaintiffs in the Florida lawsuit claim the Commerce Clause of the U.S. Constitution does not give the government authority to force Americans to purchase a commercial product such as health insurance.

However, Mills said she believes the economic cost of uncompensated health care is a hidden tax on businesses and individuals across the country.

"It is this nexus which constitutionally justifies comprehensive federal regulation," Mills wrote in a memo to lawmakers several months ago.

She said that the U.S. Supreme Court -- which eventually will hear this issue -- has upheld federal regulations in similar constitutional challenges, including the Social Security Act, the unemployment payroll tax and the Voting Rights Act.

If Maine joins the suit, she said, taxpayers would end up spending as much as $400,000 in legal fees while the state's input would have no effect on the outcome of the case.

"It's not going to be like the Supreme Court is going to say, 'Wait, where's Maine on this?' "

The law's provision requiring people -- except the very poor -- to buy health insurance is considered critical, because the law no longer allows insurers to deny coverage to anyone with pre-existing medical conditions or to charge more for insurance for persons either in poor health or of a certain age. Both provisions go into effect in 2014.

If young, healthy people don't buy insurance, or wait until they get sick to do so, the cost of insurance would skyrocket for everyone else, said Joel Allumbaugh, an insurance agent and president of the Maine Association of Health Underwriters.

"If they are successful in their lawsuit, it really takes the rest of the bill and unravels it at its core," he said. "Whether Maine is on board or not is less relevant than what happens when this ultimately gets to the Supreme Court."

-- Staff Writer Glenn Jordan contributed to this report.

MaineToday Media State House Writer Tom Bell can be contacted at 699-6261 or at:

tbell@mainetoday.com

 

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