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Obamacare Lawsuits Not for the Sick or Nonpartisan: Ann Woolner

Virginia Attorney General Ken Cuccinelli, speaking of a case aimed at stopping national health-care reform, declared, “This lawsuit is not about health care. It’s about our freedom.”

He isn’t the first to say so. Last month, at a debate among attorney general candidates in Florida, Republican contender Jeff Kottkamp said of a similar case there, “This lawsuit’s not about health care,” the St. Petersburg Times reported. “This lawsuit’s about freedom,”

They are both wrong. It’s about politics. It’s so obviously about politics that most folks take that fact for granted.

These cases are another way for Republicans to try to defeat a Democratic initiative and score points while doing it. Whether you think the lawsuits are worthy probably depends more on your political views than on your constitutional interpretation. Granted, those two are sometimes hard to separate.

But notice that 18 of the 20 attorneys general suing in Florida are Republicans. In my home state, Georgia, the Democratic attorney general refused to join the list, so the Republican governor appointed a special attorney general who would.

The only Democrat in the crowd of suing AGs is Louisiana’s Buddy Caldwell. And when he signed on, he didn’t want to talk about it, deferring comment to a spokesman to be named by the other states.

Embarrassingly Naïve

If these cases were based on independent, nonpartisan views of the issue, there would be more of a partisan mix. The very suggestion sounds embarrassingly naïve.

Virginia’s top lawyer is a standout among health-care opponents because he rushed to the courthouse to file his case first instead of joining the crowd about to file in Florida. Cuccinelli got the spotlight all to himself this week when a judge in Richmond gave Virginia a preliminary victory.

He already had made a name for himself by challenging other favorite whipping boys of conservatives. Global warming? He sued the Environmental Protection Agency over it. Gay rights? He instructed Virginia’s public universities and colleges that they can’t outlaw discrimination based on sexual orientation. Academic elitism? He subpoenaed the University of Virginia’s research records of a noted climate change scientist formerly on the faculty.

As for the health-care suit, even the judge who ruled for Cuccinelli this week noted that the case “has a distinctive political undercurrent.”

Republicans aren’t the only ones using the issue to rally the base. In a White House blog, Democratic consultant Stephanie Cutter, hired to help build public support for the law, accused opponents of using the courts to “overturn the work of the democratically elected branches of government.”

Throwing a Jab

She took another jab by likening health-reform opponents to those who filed constitutional challenges to Social Security and civil rights laws.

The health-care lawsuits are constitutional challenges, too. Does the Commerce Clause allow Congress to require people to either buy private health insurance or pay a fine?

That’s a good question, U.S. District Judge Henry E. Hudson essentially ruled this week.

The suing states say the federal government stretched its authority beyond limits and is encroaching on individual rights. Hence the freedom refrain.

(Are you picturing Richie Havens at Woodstock? Is that the same freedom Martin Luther King Jr. dreamed would be ringing from every mountaintop?)

I favor the view of constitutional lawyers who say the Supreme Court has already expanded Congress’s authority to regulate commerce enough to cover this new law.

Settled Precedent

For Virginia to win, the court would have to “ignore decades of settled precedent,” not to mention the work of the elected branches of government, the Obama administration argued in court papers.

But Hudson didn’t see that kind of clarity in prior rulings. “The guiding precedent is informative, but not conclusive,” he wrote.

No federal appeals court has specifically ruled that the Constitution authorizes Congress to regulate “a person’s decision not to purchase a product,” he said, referring to medical insurance.

So Hudson denied an administration effort to declare the suit so hopelessly without merit as to be kicked out of court without further ado.

It’s only a preliminary ruling, but it counts as a victory for the plaintiff states and hence for Republicans. And, apparently, for freedom-lovers.

Further Arguments

Thus, as campaigning for the November elections heats up, federal judges in Florida and Virginia will be entertaining further argument and evidence on the issue. First comes Pensacola in September. Then Richmond in October.

These cases can’t be just about health care, because that’s a policy matter for lawmakers to decide, not judges. There is a certain legitimacy to the White House’s complaint that, having lost legislatively, opponents are asking unelected judges to step in.

But if these cases were about health care, someone might point out that more than 1 million Virginians, or 15 percent under the age of 65, have no medical insurance, a figure that keeps growing.

A witness might testify that starting next month insurers will be barred from denying sick children coverage under a provision that takes effect Sept. 23.

In last month’s debate in Florida, attorney general candidate Dan Gelber did talk about health care. He called it a “moral stain” that 4 million Floridians are uninsured. He said the lawsuit is “frivolous,” and it is “politicizing the attorney general’s office.”

Gelber, as you’ve no doubt guessed, is a Democrat.

(Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)

To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net

To contact the editor responsible for this column: James Greiff at jgreiff@bloomberg.net

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