- The Washington Times - Friday, January 13, 2012

Eleven states and the District of Columbia are siding with the Obama administration in the legal battle over the constitutionality of the new health care law, as more than half the states prepare to challenge the law before the Supreme Court.

Attorneys general in California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, New Mexico, New York, Oregon, Vermont, the District of Columbia and the Virgin Islands filed an amicus brief with the Supreme Court on Friday supporting Congress’ authority to pass the sweeping legislation, arguing that health care is a national concern because the industry constitutes nearly one-fifth of the U.S. economy.

“There can be no serious contention that existing defects in the country’s markets for health care and health insurance—markets that accounted for 17.6% of the entire national economy in 2009—are somehow local in origin, in scope, or in effect,” the brief said.

The attorneys general rejected a central argument made by the 26 states challenging the law — that Congress overstepped its authority by passing an “individual mandate” requiring Americans to obtain health insurance or pay a fine.

Instead, they emphasized a key argument made by the administration: that because Americans are legally entitled to health care — and everyone needs health care at some point in their life — Congress can mandate coverage to ensure others don’t have to pay for it.

“It would be astounding to me if the Supreme Court determined that banning cost-shifting was unconstitutional,” said Oregon Attorney General John Kroger. “Some people have defined this as an issue of freedom. I would simply say there is no freedom to freeload.”

Iowa Attorney General Tom Miller said that if anything is involved in interstate commerce — and thus subject to the Constitution’s commerce clause — it’s health care.

“There’s been some suggestion that there should be limits on the Congress’ power,” Mr. Miller said. “Well maybe there should and maybe there shouldn’t, but I would argue this is not the case to explore congressional limits.”

While the state attorneys general insisted the issue isn’t partisan, all 11 are Democrats, while all 26 attorney generals opposing the law are Republicans.

Parties to the lawsuit have filed a flurry of briefs over the past week, preparing for three days of oral arguments before the court in late March. The justices will hear separate arguments on four questions: whether the individual mandate and the Medicaid expansion are constitutional; whether the states have standing to challenge the law; and whether the rest of the law can stand if the mandate is struck down — an issue called “severability.”

The 11 attorneys general said they intend to file two more amicus briefs expressing their positions on the Medicaid expansion provisions and severability.

• Paige Winfield Cunningham can be reached at pcunningham@washingtontimes.com.

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