Signing of health care legislation ignites passions

AG Suthers initiates lawsuit

By Ernest Luning

Add Colorado to the list of states challenging the federal health care law signed Tuesday by President Barack Obama. Charging the law steps on states’ rights and tramples individual freedom, Colorado Attorney General John Suthers announced Monday he planned to join a dozen other states suing the federal government to overturn the legislation on constitutional grounds.

Colorado Attorney General John Suthers.
Photo by Ernest Luning/The Colorado Statesman

The move by the state’s top elected Republican drew immediate fire from Colorado Democrats and could land Suthers an opponent in the fall election.

“The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage,” charges the lawsuit, which was filed by the Florida attorney general in Tallahassee while the ink was still drying on the legislation it hopes to overturn. The federal health care law steps on rights reserved to the states by the 10th Amendment and violates the Constitution’s Commerce Clause, the lawsuit argues.

“What Congress is doing isn’t regulating interstate commerce — they’re creating interstate commerce,” said Suthers at a news conference. And that, Suthers declared, violates restrictions on how far the federal government can impose its will on individual states and citizens.

“The Constitution gives Congress the enumerated powers to regulate those engaged in interstate commerce,” Suthers said. “It does not give the Congress the power to compel a citizen, who would otherwise choose to be inactive in the marketplace, to purchase a product or service and thereby become subject to congressional regulation. Such an expansion of the current understanding of the Commerce Clause would leave no private sphere of individual commercial decision-making beyond the reach of the federal government. It would render the 10th Amendment meaningless.”

In addition to Suthers, attorneys general signed on as plaintiffs in the lawsuit representing Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Pennsylvania, Washington, Idaho and South Dakota. All are Republicans except for Buddy Caldwell, the Louisiana attorney general, who said he joined in at the urging of GOP Gov. Bobby Jindal but that it’s an issue of states rights, not partisan bickering. The Virginia attorney general, also a Republican, filed a similar lawsuit the same day.

Suthers — who is up for re-election in November but is so far running unopposed — acknowledged some would question whether he joined the lawsuit for partisan reasons. Saying he hoped skeptics would wonder equally about the motivations of attorneys general who declined to sue the federal government over the new law, Suthers turned an eye toward Democrats. “There’s a lot more political pressure on the other side of the fence,” he said.

It doesn’t matter, Suthers said, that the Patient Protection and Affordable Care Act’s individual mandate — a requirement that everyone carry health insurance, enforced by tax penalties — began life in the 1990s as a Republican idea designed to counter Democratic proposals for an employer mandate. He would oppose the requirement whoever came up with it, Suthers said.

The lawsuit isn’t about politics, Suthers maintained, insisting it’s his job as Colorado’s top legal officer to defend the state when the federal government gets too grabby.

“The reason (states attorneys general) exist is to fight the over-expansion of federal power,” he said.

Not so fast, responded some of the state’s top elected Democrats, who control the rest of the executive branch and both chambers of the state Legislature.

Gov. Bill Ritter, like Suthers a former district attorney, criticized the move and said it was the wrong thing to do for Colorado. After listing reasons he said Colorado needed national health care reform to expand coverage and drive down costs, a statement by Ritter concluded, “I am confident the reforms poised to become law in Washington will complement and support Colorado’s efforts, that they are within Congress’s power to regulate commerce, and that they are constitutionally sound.”

Although state law allows the attorney general to act on his own, Suthers said he approached Ritter’s office before his announcement and asked if the governor wanted to participate. “They declined,” he said.

“This litigation is based on the ideology of the extreme right wing, instead of being based on compassion for the 800,000 uninsured men, women and children in Colorado,” said Senate Majority Leader John Morse, D-Colorado Springs, in a statement. “We should be supporting every effort to bring down health care costs and eliminate real human suffering.”

“I’m disappointed that the Attorney General is choosing to use state resources in needless litigation,” added Senate President Brandon Shaffer, D-Longmont.

Calling the lawsuit a “partisan re-election stunt,” state Democratic Party Chairwoman Pat Waak demanded Suthers bring an end to Colorado’s participation. “It’s a frivolous lawsuit wasting Colorado’s taxpayer money,” she said.

Suthers downplayed the cost of joining the complaint. “I think the resources will be minimal,” he said, noting that Florida’s attorney general had drafted the lawsuit and would take the lead.

Republican gubernatorial candidate Scott McInnis applauded Suthers for taking on the health insurance mandate.

“The federal government should not be compelling citizens in Colorado, or any other state, to buy certain types of insurance and instituting federal penalties if they choose not to do so,” McInnis said. “That’s an expansion of federal power that is simply wrong, and well outside the bounds of the Constitution. The federal government cannot impose its will on the states without limits, and the Attorney General was right to join with his colleagues from around the country and speak out for basic constitutional principles.”

Despite Suthers’ insistence his motives for joining the lawsuit aren’t political, the move could have swift political repercussions. Soon after news about the lawsuit broke, as many as a half dozen high-profile Democrats began inquiring about running against Suthers in the November election, Waak said.

“Within the last 24 hours the interest in the attorney general’s race has suddenly ratcheted up,” Waak said Wednesday afternoon.

She declined to identify the potential candidates who have contacted her but said they include well known Democrats from among the state’s district attorneys, trial lawyers and law school faculties. Waak also said a term-limited legislator could be examining the race.

“We don’t want a primary, we want the best candidate,” Waak said, “so I’ve encouraged them to talk to each other and decide who’s the best candidate to step forward.”

Suthers had an opponent briefly last fall in Democratic Party official and Cañon City attorney Dan Slater, but he dropped out within weeks of declaring. Denver-based employment attorney Kirk Nemer has been gathering support for a run since last fall and placed a prominent ad in the state party’s Jefferson Jackson Day dinner program earlier this month but hasn’t officially announced a bid.

Waak said the lawsuit to overturn health care legislation has galvanized dissatisfaction with Suthers. “This is not the first issue we’ve had with John Suthers, but it is certainly the most flagrant,” she said.

In the days since Suthers’ announcement, Waak said, she’s heard from hundreds of state residents who tell her they’ve called his office to complain. “Folks are being told by the attorney general’s office they can’t keep up with all the calls that are coming in against it,” she said.

The office is getting hundreds of calls, attorney general spokesman Mike Saccone said Wednesday, but they’re running about 50-50 between supporters of Suthers’ position and opponents.

“I’m getting hundreds of e-mails from people,” Waak said, “including some who would like to recall him. I tell them the recall election is in November.”

News of Suthers’ intentions came the same day Independence Institute President Jon Caldara appeared at the State Capitol with a group of Republican state lawmakers to boost his plans to take a state constitutional amendment before voters. The “Right to Health Care Choice” initiative, which Caldara hopes to put on the November ballot, would forbid the government from imposing mandates requiring anyone to carry health insurance. It would also require health care providers to take direct payments for services.

U.S. Reps. Doug Lamborn and Mike Coffman, the two Republicans in Colorado’s congressional delegation, praised Suthers and said they would back Caldara’s ballot measure.

“I support the citizens’ effort to amend the Colorado Constitution as one of several steps in the fight against this Washington power grab,” said Lamborn in a joint statement issued along with Coffman. “When it comes to protecting our freedoms, I have only just begun to fight.”

“I applaud the Independence Institute for pursuing a ballot initiative and Colorado’s Attorney General John Suthers for filing a lawsuit to fight and protect Coloradans from the unconstitutional mandates contained in the Democrats’ health bill,” Coffman said. “The U.S. Constitution does not provide the federal government the authority to mandate that individuals purchase a government approved commercial product,” he said, adding he believes the health care system needs reform, just not the kind Congress passed.

Initial reaction to the multi-state lawsuit from legal experts tended toward skepticism, with constitutional scholars pointing to broad authority granted the federal government under recent court decisions to regulate economic activity, which could include the decision to buy health insurance or not.

Actions taken by health care consumers are even more tied to the kind of economic activity Congress can regulate than other activity the Supreme Court has explicitly allowed the federal government to compel, argued University of California-Irvine law school dean Erwin Chermerinsky in a recent Politico editorial. The Commerce Clause also holds sway over inactivity, he wrote, noting that federal Civil Rights legislation denied motels and diners the right to refuse to serve African American customers.

But a growing cadre of conservative legal scholars makes a case that the Commerce Clause can be reined in by the current Supreme Court, and any legal observer will acknowledge it only takes five votes to prevail in the nation’s high court.