By N.C. Aizenman
Washington Post Staff Writer
Wednesday, May 12, 2010; A04
Efforts to block a key provision of the new health-care overhaul law are underway in 33 states, as a growing roster of mostly Republican officials have mounted legal and legislative challenges to an eventual requirement that virtually all Americans buy health insurance or pay a penalty tax.
This Friday, seven more states will formally join a lawsuit originally filed by Florida and 12 other states in late March.
The suit, filed in a U.S. District Court in Florida, contends that Congress lacks the constitutional authority to mandate an individual's participation in an insurance plan, and that it has infringed on states' rights by requiring them to extend coverage to more low-income residents without fully funding the additional cost.
Many constitutional scholars have said the suit has slim chances. But activists say they view the lawsuit as the first of what they hope will be a slew of challenges mounted by state governments, legislatures and individuals, ultimately narrowing the law's scope and possibly unraveling it altogether.
"This is going to be a long, protracted war of attrition and we haven't even seen the first wave of regulations yet," said Clint Bolick, litigation director of the Goldwater Institute -- an Arizona-based group that is advising state officials.
Supporters of the overhaul argue that if insurance were not mandated, costs would rise to prohibitive levels: Since the law will bar insurers from excluding people with pre-existing conditions the sick and elderly would be vastly over-represented in the insurance pool if other people held back. They also point to the Supreme Court's long record of upholding congressional authority to regulate the economy by imposing taxes, to impinge on personal freedoms in the national interest and to supersede conflicting state laws.
The private lawyer advising the states, David B. Rivkin Jr., a former Justice Department official under Presidents Ronald Reagan and George H.W. Bush, said he anticipated that the judge would hear arguments on the case as soon as mid-September. "It's an aggressive schedule," he said.
Virginia, which has filed a separate lawsuit, may get a decision even sooner. The state, which along with Idaho was one of only two to pass a law prohibiting the "individual mandate" to purchase coverage even before Congress passed the overhaul, is arguing that the federal law infringes on Virginia's statute. Last Friday, the U.S. District judge presiding over that case gave Justice Department lawyers until May 24 to file their response.
Political leaders in more than a dozen states, including many that are party to the multistate lawsuit, are also attempting to follow Virginia's strategy of enacting legislation that will inevitably lead to a clash in the courts.
Arizona, where attempts to adopt a nearly identical constitutional amendment failed in 2008, succeeded in passing a statute during a special session convened after the federal law was passed.
Versions have since been approved by the legislatures of Georgia and Oklahoma and await gubernatorial signatures, according to records maintained by the American Legislative Exchange Council, a Washington group that advocates limited government and free markets and that has helped state lawmakers harmonize their efforts. On Tuesday, lawmakers in Missouri approved putting a similar law up for statewide referendum on Aug. 2. Seven more states are considering such bills, including Tennessee, where one chamber of the General Assembly has already signed off.
Leaders in Arizona, Oklahoma and Florida are also trying a third approach: putting a state constitutional amendment prohibiting the individual mandate on their ballots for November. Similar campaigns are underway in 11 more states. (Proposals to adopt legislation or constitutional amendments were unsuccessfully attempted in 15 additional states, including Maryland.)
For all his work coordinating it, Bolick said "the frontal assault on Obamacare faces very tough odds." But he likened the fight to previous efforts to block the 2002 McCain-Feingold campaign-finance law, parts of which the Supreme Court struck down in January.
"The initial challenges to McCain-Feingold were rejected," said Bolick. "But since then, litigators found the vulnerabilities. Likewise, here I think you're going to see a thousand flowers bloom in terms of lawsuits. I'm hoping that this will die a death of a thousand cuts."