Experts differ on merits, political impact of McCollum's health care lawsuit

Florida Attorney General Bill McCollum grabbed national attention and praise from fellow Republicans last week with a lawsuit challenging the newly passed health care reform bill.

But McCollum has also come under attack from Democrats who say the lawsuit is an illegal, taxpayer-funded political stunt intended mainly to boost his campaign for governor.

Depending on how the debate on health care reform plays out, political experts say, the lawsuit could either help the campaigns of McCollum and other Republicans, or hurt them, if he's perceived as trying to undo health care benefits many Americans want.

Constitutional scholars differ on whether there's a legal basis for McCollum's charge that it's unconstitutional for the government to require citizens to buy health insurance.

Many say, however, that the Constitution's "commerce clause," giving Congress the ability to regulate interstate trade, gives Congress greater power than most laymen realize.

McCollum says it's just too great a stretch.

Not buying health insurance, he told The Tampa Tribune shortly before filing the lawsuit, "isn't a commercial act that Congress can regulate."

"The new law infringes upon the constitutional rights of Floridians ... by mandating all citizens and legal residents have qualifying health care coverage or pay a 'living tax' penalty," he said in a news release. "As Attorney General, it is my job to protect the rights of the people of Florida."

University of Florida constitutional law professor Fletcher Baldwin Jr. disagreed.

"As far as I can tell the commerce clause has been treated as providing a very, very wide range of powers" he said.

Court rulings have given Congress ability to regulate even such seemingly private matters as how much grain farmers grow on their own land for their own personal use, he noted.

"I think the suit is really nothing more than a political ploy to keep the argument alive and convince people ... that their rights are being trampled," Baldwin said.

Stetson University law school constitutional expert Bruce Jacob said all existing case law by the Supreme Court is against McCollum's theory.

Some conservative constitutional scholars disagree, and even those who call the lawsuit baseless are hesitant to predict how a federal judge or the Supreme Court might react - particularly a court now dominated by conservatives led by Chief Justice John Roberts.

McCollum may have sought a conservative lower court for his lawsuit's first hearing.

The Florida Northern District U.S. Court's Tallahassee division is located barely five blocks from McCollum's office in the state Capitol, but he filed the lawsuit about 200 miles away, in the Pensacola division.

The Tallahassee division includes two judges appointed by Democrat Bill Clinton and one semi-retired senior judge appointed by moderate Republican Gerald Ford. The Pensacola division includes one appointee each of George H.W. Bush, George W. Bush and Ronald Reagan.

The Reagan appointee, Judge Roger Vinson, also a senior judge, has drawn the case.

Chris Griffin, a Tampa lawyer who practices regularly in federal court, said the nature of McCollum's case suggests it could be filed anywhere in Florida, and there could be many reasons for choosing one location over another.

McCollum wasn't available for an interview after filing the lawsuit. Neither he nor his campaign has answered questions from the Tribune including why he filed in Pensacola and how much his office is spending on the lawsuit.

McCollum campaign spokeswoman Kristy Campbell said in an e-mail Friday night, "Attorney General McCollum is simply pursuing appropriate action on behalf of our state and our citizens. ... It is clear the Democrats' have gone into panic-stricken overdrive trying to defend their unconstitutional health care reform plan."

Although the individual mandate has received the most attention, McCollum makes other arguments against the health care reform bill in his lawsuit.

He also argues that the bill would violate the sovereignty of states by forcing them to expand eligibility for Medicaid, substantially increasing Florida's Medicaid costs.

But the federal government, Baldwin said, has often forced the states to enact legislation and social welfare programs of varying kinds.

Democrats have also bashed McCollum for hiring outside lawyers to work on the case - his former partners at the Washington law and lobbying firm of Baker Hostetler.

The two lawyers, David Rivkin and Lee Casey, have been outspoken advocates against the health care reform bill for months; McCollum reportedly has said the two are working for discount rates.

Democrats also contend McCollum violated a state law requiring the attorney general to consult with Florida Congress members on certain lawsuits.

Filing the lawsuit fits with McCollum's strategy so far in his campaign of trying to nationalize the race for governor - he has repeatedly demanded that his likely Democratic opponent, Alex Sink, take a stand on the health care proposal.

Sink has resisted doing that.

Whether the lawsuit will help with his strategy may be even less predictable than its legal effect.

While McCollum and Republicans can argue that they're trying to thwart an oppressive, unwanted health care measure, Democrats can argue that the bill includes many things most Americans say they want, said Scott Paine, a University of Tampa political scientist and a Democrat.

"Most Americans wanted some kind of reform and wanted most of the major elements of this bill," he said. "They opposed the bill itself, but by close margins."

The outcome, he said, could depend on which candidate best makes his case in a particular race.

University of Central Florida political scientist Aubrey Jewett, who's politically neutral, said McCollum's tactics could work.

"Probably the clearest evidence that it might is that Alex Sink seems to be worried that if she takes a strong stance it could hurt her," Jewett said.

But, he added, "Don't underestimate the power of Barack Obama to inspire and mobilize people. He's going to use his rhetorical skills to sell this plan to the public."