States respond to motion to dismiss health care challenge

John O'Brien Aug. 9, 2010, 9:49am

Florida Attorney General Bill McCollum

PENSACOLA, Fla. (Legal Newsline) - The 21 states challenging federal health care reform say Congress isn't regulating interstate commerce, it is forcing it.

The state of Florida and 20 others, including Texas, wrote in a response to the federal government's motion to dismiss their challenge that the mandate that forces individuals to purchase health insurance is an "unprecedented intrusion" on the freedoms of states and their citizens.

The mandate forces individuals to buy health insurance or face a $695 annual penalty.

"The individual mandate is manifestly unconstitutional," attorneys for the states and the National Federation of Independent Business wrote Friday.

"No enumerated power of Congress permits this assertion of top-down centralized economic power; nor can the Necessary and Proper Clause expand congressional power to support the mandate.

"Congress' commerce power extends to regulation of activities having a substantial relation to interstate commerce, but does not allow it to compel inactive individuals to enter a marketplace against their will."

President Barack Obama signed the health care reform package into law in March. The federal government filed its motion to dismiss the challenge in June.

In the motion, the federal government wrote the challenge "runs afoul" of U.S. Supreme Court precedent.

"The provision will not take effect until 2014, and it is entirely speculative whether the individual plaintiffs will be injured," the motion says, adding the states do not have standing to challenge the mandate.

"The minimum coverage provision is well within Congress' authority under the Commerce Clause."

The states argue that Congress' power to tax does not authorize it to force individuals to buy specific insurance products.

The federal government took issue with the states' argument that "inactivity by its nature cannot be in commerce."

It "misunderstand(s) both the nature of the regulated activity here and the scope of Congress' power," the motion to dismiss says.

Virginia Attorney General Ken Cuccinelli has a separate challenge in Virginia federal court. He says the mandate is in contrast to a recently passed state law.

A federal judge recently denied the federal government's motion to dismiss, allowing the case to move forward.

From Legal Newsline: Reach John O'Brien by e-mail at

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