Calif. AG becomes Obama's ally in health care fight

John O'Brien Mar. 9, 2011, 9:30am


RICHMOND, Va. (Legal Newsline) - First, President Barack Obama supported Kamala Harris' campaign for California attorney general. Now, she's defending Obama's federal health care reform package that has twice been ruled unconstitutional.

Harris led a group of state attorneys general in an amicus brief filed Monday with the U.S. Court of Appeals for the Fourth Circuit, which is hearing the federal government's appeal of a ruling in favor of the state of Virginia. A federal judge ruled in December that the health care law is unconstitutional.

Virginia Attorney General Ken Cuccinelli argued in his lawsuit challenging the law that a mandate requiring citizens to purchase health insurance or face a $695 annual penalty is unconstitutional and flies in the face of Virginia law.

Harris and nine other attorneys general disagree with Cuccinelli, who has asked the U.S. Supreme Court to hear the appeal instead of the Fourth Circuit in the interest of a quick resolution.

"The (Affordable Care Act) represents a reasonable means of grappling with the United States' health care crisis," Harris' brief says. "The minimum coverage provision, which requires non-exempt adults to maintain adequate health coverage, is but one part of a comprehensive health care reform law intended to increase Americans' access to affordable health care.

"The ACA relies in large part on an expansion of the current market for health insurance, building upon existing state and federal partnerships to improve access to and the quality of health care in the United States."

The brief says the minimum coverage provision ensures that "individuals take responsibility for their own care rather than shifting those costs to society" and eliminates caps on benefits and ensures that individuals with preexisting conditions will be able to find affordable insurance.

As for the constitutional discussion, the states say Congress has the authority to enact the provision under power given to it by the Commerce Clause. U.S. District Judge Roger Vinson ruled in a challenge brought by 26 states that the Commerce Clause does not allow the federal government to regulate economic inactivity such as an individual not wanting to take part in a specific marketplace, like health insurance.

"Rather, the minimum coverage provision is included in Congress' power to regulate activities that substantially affect interstate commerce," Harris' brief says. "Exercising this power, Congress may regulate economic activities that, in the aggregate, have a substantial effect on interstate commerce."

Vinson found that the mandate was too integral a part to be separated from the law, so he voided the entire legislation.

"It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause," he wrote.

And to allow otherwise would be dangerous, Vinson ruled. He pointed out that other jurists have opined on the threat of an overexpanded Commerce Clause.

"There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort," he wrote.

"The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that --- when aggregated with similar economic decisions --- affect the price of that particular product or service and have a substantial effect on interstate commerce."

Each of the attorneys general who joined Harris' brief is a Democrat. They are Maryland's Doug Gansler, Connecticut's George Jepsen, New York's Eric Schneiderman, Delaware's Joe Biden, Oregon's John Kroger, Hawaii's David Louie, Oregon's John Kroger, Vermont's William Sorrell and Iowa's Tom Miller.

Jepsen, Schneiderman and Louie are newcomers to their positions, as is Harris. In October, the Democratic National Committee released Obama's statement endorsing Harris in her race against Republican Steve Cooley.

"She is someone who understands the needs of all Americans, and I need allies like that fighting for change across the country," Obama's statement said.

From Legal Newsline: Reach John O'Brien by e-mail at

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