Dubofsky speaks out on Suthers' health reform challenge

Former Colorado Supreme Court Justice Jean Dubofsky, a founding member and current chair of the Board of Directors of the Bell Policy Center, issued the following statement concerning Attorney General John Suthers' decision to challenge federal health insurance reform in court. The Bell joins The Denver Post and many others who are calling on the Attorney General to reconsider his decision to file suit against this landmark legislation.

Statement from Former Justice Jean Dubofsky

The lawsuit filed by state attorneys general, including Colorado's John Suthers, in federal district court in Florida claims that the new health care law's requirement that all Americans buy health insurance is unconstitutional. I believe that the lawsuit stands little chance of success. First, there is a significant question whether state attorneys general have standing to challenge the new law, especially when many of its provisions have not yet gone into effect. Second, Congress has the power - under both the Commerce Clause and the power to tax - to impose and enforce a requirement that citizens have health insurance.

Health care, which now comprises about one-sixth of our national economy, has an enormous impact on interstate commerce, and regulation of the means to pay for health care is within the federal government's authority. All individuals who do not have health insurance are a potential burden on all others who have purchased coverage: When the individual without insurance needs health care and cannot afford it, the cost of providing that health care in a hospital emergency room is transferred to those who have insurance, causing their insurance bills to increase.

In addition, enforcement of the requirement will be through a tax administered by the Internal Revenue Service. The attorneys general allege that the tax is unapportioned among the states and is unrelated to any taxable event. To the contrary, the mechanism chosen by Congress to enforce the requirement of health insurance is not unusual. For example, the enforcement mechanism is similar to that used to enforce child-support payments. If a non-custodial parent has failed to make child-support payments, the amount of the arrears can be withheld by the IRS from the non-custodial parent's tax refund. Failure to make child-support payments often means that the child becomes a burden on federal and state taxpayers through the welfare system.

Does Colorado's attorney general really want to remove the mechanism in the health care bill that distributes the cost of providing health care to everyone?

Finally, the factual basis for the lawsuit is the increased burden on the states from the expansion of Medicaid to provide health insurance for those who cannot afford it. The attorneys general cannot attack the expansion of Medicaid directly because the courts have long upheld federal laws establishing partnerships between the states and the federal government to pay for welfare and health care for the poor. There seems to be little direct connection between the stated reason for bringing the lawsuit (the burden on the states of paying one-half the cost of Medicaid) and a challenge to the requirement that those persons who can afford to purchase health insurance be required to do so.

Does Colorado's attorney general really want to reject the millions of dollars in federal health care assistance that would come to this state from the expansion of Medicaid?

 


Article posted on March 25, 2010