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Shurtleff: Utah to join lawsuit against federal health care reform

Published: Tuesday, March 23 2010 12:00 a.m. MDT

SALT LAKE CITY — Utah Attorney General Mark Shurtleff said Monday that Utah will join a group of states in filing a lawsuit against just-approved federal health care legislation as soon as it's signed today by President Barack Obama.

Shurtleff called the new set of reforms unconstitutional and said Utah is ready to act in defense of its citizens' rights. "This is one of the biggest federal grabs ever conducted of states' powers," Shurtleff said. "We, along with other participating states, will file this complaint as soon as the president signs the bill."

Shurtleff is one of at least 10 state attorneys general who had promised by Monday to file suit. The other states are Alabama, Colorado, Florida, Michigan, Nebraska, Pennsylvania, South Carolina, Texas and Washington. Officials in North Dakota were weighing whether to join the case.

House Minority Leader David Litvack, D-Salt Lake, said Monday evening he was disappointed with news that Utah would join with other states in such litigation.

"I've always viewed the relationship between states and the federal government, in terms of health care reform, as one that works best as a partnership," Litvack said. "The focus should be on healthy debate, especially about the individual mandate part of this legislation … 99 percent of what passed Sunday is non-controversial and letting this one aspect derail the whole process doesn't help those most in need."

Litvack noted that the efforts already under way to re-make Utah's health care system may have eventually come to the same conclusion that Congress did — that mandating individual health insurance coverage served the greater good.

"As the work to reform our state's system continues, it's not clear that the door was shut on the possibility of the individual mandate," Litvack said. "This, if it stands, just may push us faster in a direction we were already headed."

In Washington, Obama's health care overhaul isn't completely finished. Republicans in the Senate are planning parliamentary maneuvers to keep a companion bill from reaching the president's desk.

Experts say that, plus the states' threatened lawsuit and moves afoot in several other states to thwart the mandate forcing Americans to have health insurance, are not likely to work, but it will keep the issue, and the outrage, alive until Election Day.

Although the main bill has passed both houses of Congress, a series of changes sought by House Democrats was headed to the Senate, where debate is expected to begin as early as today.

Former Republican presidential contender Mitt Romney said Monday the health care bill is unconstitutional, deserves to be repealed and will help cost the Democrat a second term.

The former Massachusetts governor made the remarks after signing nearly 1,000 copies of his new book, "No Apology: The Case for American Greatness," at a bookstore near his La Jolla, Calif., vacation home.

Romney said the bill is unconstitutional because it interferes with interstate commerce. He says it needs to be repealed in part because it was passed without bipartisan support.

Shurtleff said the most troublesome provision in the bill, which squeaked through the U.S. House of Representatives Sunday on a 219-212 vote with all three Utah House members weighing in against the proposal, requires uninsured citizens to purchase insurance or face penalties.

"This requirement goes far beyond the constitutional limits of federal power into the realm of state authority," Shurtleff said. "And, it is in direct conflict with the mandates of HB67, which the Legislature approved this session."

That proposal, just signed into law by Gov. Gary Herbert on Monday, in part expressly prohibits a Utah resident from being required to purchase health insurance. Herbert said Monday he is concerned with the impact the federal decision may have on Utah's own health care reform efforts, which are currently in the third year of a 10-year plan.

"States must take reasoned, proactive steps to keep themselves in control of their own reform efforts," Herbert said. "In light of the concerns shared by many people in Utah and across the country, it is entirely appropriate that the attorney general and his counterparts across the nation consider every option on this issue."

Herbert spent Monday talking with fellow GOP governors meeting in Deer Valley about their shared opposition to the new federal health care mandate.

"Obviously, legal action is an option and everyone is aware of that, so it's kind of the conversation today, which states will join in those efforts," Herbert's spokeswoman, Angie Welling, said. Participants in the two-day Republican Governors Association meeting were Herbert, Idaho Gov. Butch Otter, Mississippi Gov. Haley Barbour and Texas Gov. Rick Perry.

The Utah bill's sponsor, Rep. Carl Wimmer, R-Herriman, said Monday that he was disheartened by Congress' decision but proud of the Utah Legislature's move this past session to pre-empt possible federal mandates.

"I'm beyond disappointed that Congress chose to ignore the will of the citizens in passing this clearly unconstitutional bill," Wimmer said. "Now, I believe HB67 will turn out to be far more important than some critics, who called it a message bill, ever thought."

The bill's Senate sponsor, Sen. Stuart Adams, R-Layton, said he was surprised Congress passed the health care bill, given the concerns being raised in Utah and elsewhere around the country. "My hope was to send a message to Washington, to allow the states to do what they ought to be doing, and that is to let the government closer to the people make these decisions," Adams said.

But since the message fell on deaf ears, Adams said he supports legal action.

"If it takes litigation, yes, I'm supportive of the attorney general's effort," he said. "It's a last-ditch thing."

Senate Majority Leader Scott Jenkins, R-Plain City, said the state has a responsibility to fight the federal government.

"This is what people all the time say, 'Aren't you just wasting our dollars doing this stuff?' My answer is no, this is what states are supposed to do," Jenkins said. "We're supposed to push back against the federal government."

Utah Sen. Orrin Hatch said Monday he supports Utah's participation in a legal challenge.

"Congress has overstepped its legal authority by telling Utahns and other Americans that they must buy health insurance or else," Hatch said. "The Constitution empowers Congress to regulate interstate commerce, but not to tell Americans what they can buy."

Many constitutional scholars say the so-called "health care freedom" laws and amendments do not have any chance of succeeding for one simple reason: The Constitution establishes that national laws take precedence over state laws.

"They can sue, but I can't imagine a scenario in which a judge would enjoin the implementation of the federal health care bill," said Lawrence Friedman, a law professor who teaches constitutional law at the New England School of Law in Boston.

But others say it is not that simple.

Dave Roland, a lawyer and policy analyst at the Show-Me Institute, a nonpartisan think tank in St. Louis, said the state constitutional amendments, which focus on creating new rights for individuals, could make a plausible court challenge to the federal health care mandates.

"I think there is a very distinct possibility that the Supreme Court might say that where you have a freedom secured by a state constitution that it might warrant protection, even against a federal statute," Roland said.

Contributing: Denise Lavoie, Associated Press

e-mail: araymond@desnews.com; lisa@desnews.com

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