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Utah Attorney General Mark Shurtleff expects another 5-4 decision in health care case

Published: Monday, March 26 2012 12:55 p.m. MDT

Supporters for and against the health care reform law signed by President Barack Obama rally in front of the Supreme Court in Washington, Monday, March 26, 2012, as the court begins three days of arguments on health care.

Charles Dharapak, Associated Press

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SALT LAKE CITY — Utah Attorney General Mark Shurtleff predicts a 5-4 decision, one way or the other, in the landmark U.S. Supreme Court case on the federal health care reform law.

"I'm feeling pretty good about it actually," he said after Monday morning's oral arguments.

Though not arguing the case, Shurtleff has a front-row seat in the courtroom as Utah is among 26 states and the National Federation of Independent Business challenging the constitutionality of what some have dubbed "Obamacare."

"This may be the most important court hearing of our lifetime because of the impact it will have on the reach of the federal government and our individual liberties," he told KSL Radio.

The Patient Protection and Affordable Care Act changes certain aspects of the private health insurance industry, increases coverage of pre-existing conditions and aims to extend insurance coverage to more than 30 million Americans. It requires individuals to buy insurance or pay a penalty beginning in 2014.

Obama signed it into law two years ago last Friday after Congress approved it mostly along party lines.

As of January, two of four federal appellate courts had upheld the law; one declared the individual mandate unconstitutional and a fourth ruled the issue couldn't be decided until taxpayers begin paying penalties.

The Supreme Court scheduled an unprecedented six hours of oral arguments over three days, concluding Wednesday. A decision is expected in June. Former U.S. Solicitor General Paul Clement is representing the states.

Monday's hearing centered on whether an obscure 1867 tax law prohibits lawsuits, like the one challenging the health care law, from going forward until someone actually pays the penalty for not buying health insurance.

Shurtleff said the justices asked probing questions about that issue Monday.

"They've done their homework. They were very engaged," he said.

Should the court decide that law applies, the case would not be "ripe" until 2015. But Shurtleff said he doesn't think the court will go that direction, though it would be a "political out" for the justices on a "politically charged" issue in an election year.

Tuesday's arguments are expected to focus on one of the more controversial aspects of the law: the mandate for individuals to buy health insurance. The Utah Legislature passed a bill in 2010 that expressly prohibits a Utah resident from being required to purchase health insurance, which gave the state standing in the Supreme Court case.

"If the (federal government) can get away with this, frankly they can get away with anything," Shurtleff said.

Sen. Mike Lee, R-Utah, expressed the same sentiment Monday, saying it would allow the government to tell people how much to spend on leafy green vegetables for health reasons.

"If Congress is given the power, there's no logical stopping point," he said. "It leads to tyranny if you have unfettered power at the federal level."

Like Shurtleff, Lee predicts a 5-4 decision in which the Supreme Court finds the health care law goes too far and invalidates the individual mandate.

E-mail: romboy@desnews.com >Twitter: dennisromboy

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