State to sue Congress on health care

Colorado will join nine other states in a legal attack on just-passed heath care legislation, questioning the constitutionality of the requirement that individuals purchase health insurance.

Congress can’t simply force individuals to purchase a product or service because it’s convenient, Attorney General John Suthers said.

“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.”

The individual mandate underlies the Patient Protection and Affordable Care Act, which is to be signed by President Obama today.

Gov. Bill Ritter criticized Suthers’ decision to join the lawsuit, saying in a news release: “Colorado and all states need national reform to ensure that people with pre-existing illnesses do not lose coverage or are denied coverage. We need national reform to help drive down costs, and we need national reform to stop annual double-digit insurance premium increases that are devastating small businesses and families alike.”

The individual mandate is also a plank in the health care restructuring that a Colorado commission supported two years ago, along with the Western Slope lobbying and promotional organization, Club 20.

It’s the only way to address the shift of costs to insurance and paying patients that occurs when uninsured people obtain medical treatment for which they don’t pay, Club 20 Executive Director Reeves Brown said.

“It’s that unfair cost shift that the individual mandate tries to rectify,” Brown said. Club 20 supports it “for a good reason: personal responsibility.”

The mandate is part of a measure that is intended to extend benefits to 32 million people who are uninsured at a cost of $940 billion over 10 years.

Whatever the financial benefits, Congress is moving into new territory by extending the government’s reach into commerce that otherwise wouldn’t take place, Suthers said in a telephone interview.

“It is pretty amazing,” Suthers said. “Instead of regulating, they’re creating commerce” that then falls under the Constitution’s Interstate Commerce Clause.

Once the president signs the measure, Suthers will join attorneys general from nine other states in challenging its constitutionality.

The other states are Alabama, Florida, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas and Utah.

The states also will question whether Congress is treading on areas reserved to the states and whether an individual mandate lies within the enumerated powers allocated to the federal government by the Constitution, Suthers said.

If the federal government is constrained from setting an individual mandate, then how does it collect Social Security and Medicare taxes “and all the other things we have no choice in paying,” Brown said.

If Congress isn’t constrained by the Constitution, then, it can extend its regulatory reach to deeper levels, such as deciding what people can eat, Suthers said.

It’s likely the case will begin at the district level and travel through the appellate system before reaching the Supreme Court, rather than go directly to the high court, Suthers said.


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