Colo. Supreme Court Justice Dubofsky questions legitmacy of Suthers’ health reform lawsuit

Former Colorado Supreme Court Justice Jean Dubofsky, a founding member and current chair of the Board of Directors of the Bell Policy Center, issued a statement today critical of the reasoning guiding the lawsuit filed by Republican attorneys general in roughly a dozen states. The controversial suit challenges the constitutionality of the federal health reform legislation signed into law Tuesday.

Dubofsky joins a growing chorus of constitutional scholars dismissing the suit’s chances of success. The critiques of the suit taken together with the rapid manner in which it was filed and the politics of the attorneys general who have so far joined the suit suggest it should be viewed less as legal argument and more as partisan politics.

jean dubofsky

In her statement, Dubofsky questions the authority and standing of the attorneys general to file the suit. She also lines up examples to demonstrate that the government’s requiring citizens to purchase insurance is supported by precedent and that the IRS clearly acts to enforce similar mandates all the time.

She points out that the stated reason for the suit– that states shouldn’t be made to pay for an expansion of Medicaid– doesn’t match with the complaint on constitutional grounds that the government doesn’t have the authority to force Americans who can pay for insurance to buy it. Dubofsky also questions whether Suthers has fully considered whether he wants the remedies he is asking for from the courts.

Does Suthers want to strip away the mechanism by which the government would pay to extend health care? Does he want to reject the federal funds that would pay to expand Madicaid in the state?

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… 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 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?

Dubofsky, onetime Deputy Attorney General for Colorado, became the youngest Colorado Supreme Court Justice when she was appointed in 1979. She wrote hundreds of opinions for the court before she retired in 1988. Last year she wrote the legal brief that provided the basis to repeal the Arveschoug-Bird budget provision that for nearly 20 years acted as a TABOR-related cap on general fund spending in Colorado. She also also argued the case against so-called clean government Amendment 54, which was struck down last month by the Colorado Supreme Court as unconstitutional.

Attorney General Suthers is running for reelection this year. The man spearheading the lawsuit against the health legislation, Bill McCollum, is running to be governor of Florida.

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About the Author

John Tomasic

Writer, editor, teacher, web wrangler. He has worked for art, business, culture, politics publications, five universities and a UN war crimes commission. @johntomasic
jtomasic@coloradoindependent.com | 720-432-2128 |

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