****FOR PRINT**** States file brief in ObamaCare challenge

Jessica M. Karmasek May 6, 2011, 3:25am


ATLANTA (Legal Newsline) - Twenty-six states have filed a brief that urges a federal appeals court to strike down President Barack Obama's federal health care law as unconstitutional.

The attorneys general filed a 90-page legal brief with the U.S. Court of Appeals for the Eleventh Circuit on Wednesday. In it, they ask the appellate court to affirm an earlier decision holding that the Patient Protection and Affordable Care Act's individual mandate provision violates the U.S. Constitution.

"The individual mandate poses a significant threat to individual liberty," Texas Attorney General Greg Abbott said in a statement. "By requiring all Americans to purchase health insurance, Congress is violating the U.S. Constitution. The federal government simply does not -- and cannot -- have that power."

In January, U.S. District Judge Roger Vinson sided with the 26 states, ruling that the individual mandate violates the Constitution and issued an order striking down the federal health care law.

Vinson said he voided the entire legislation in the multistate lawsuit because the mandate is too integral a part to be separated. He called it "a difficult decision to reach."

"If Congress intends to implement health care reform -- and there would appear to be widespread agreement across the political spectrum that reform is needed -- it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not," he wrote.

"It is Congress that should consider and decide these quintessentially legislative questions, and not the courts."

The U.S. Department of Justice, representing the federal government, appealed that ruling to the Eleventh Circuit in Atlanta. Oral arguments are set for June 8.

"The individual mandate is an unprecedented assertion of a power Congress simply does not possess. Congress has substantial power to regulate interstate commerce, but it may not compel individuals to enter into such commerce so that Congress may better regulate them. In the more than 200 years that the Constitution has been in place, Congress has never before attempted to exercise its Commerce Clause power in this manner. That is not the product of remarkable restraint; Congress has not exercised such a power because it does not exist," the states wrote.

"Permitting Congress to force citizens to engage in commerce all the better to regulate them is simply not compatible with a system of enumerated and limited powers or a system of dual sovereignty. Sanctioning such a power would eliminate all meaningful limits on Congress's authority and be the death knell for our constitutional structure and individual liberties."

The states argue that the law also unconstitutionally forces state governments to spend billions of additional dollars on expanded entitlement programs.

"The Patient Protection and Affordable Care Act is an extraordinary bill that rests on unprecedented assertions of federal power. In at least two respects, the Act pushes even the most expansive conceptive of the federal government's constitutional powers past the breaking point," the states wrote.

"Every individual would be at all times subject to federal regulation of his or her private decisions related to health care or anything else that substantially affects interstate commerce (which it to say, almost anything else). There is no logical reason why such regulation would have to be limited to the decision whether to purchase health insurance."

The states fear that in regulating the purchase of health insurance, Congress could regulate other decisions bearing on an individual's supposed "active participation in the health care market."

"The federal government's interest in controlling the cost of health care would likewise give Congress authority to order individuals to eat more vegetables and fewer desserts, to exercise at least 45 minutes per day, to sleep at least eight hours per day, and to drink one glass of wine a day but never any beer," they wrote.

The 26-state coalition includes Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin and Wyoming.

The states are joined in the lawsuit by the National Federation of Independent Business, and individual plaintiffs Mary Brown and Kaj Ahlburg.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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