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Wednesday, September 15, 2010

Hot air blowing in Florida

It was hot yesterday in Pensacola. And the weather isn't helping. Yesterday morning, the United States District Court heard arguments on the motion to dismiss the Florida Attorney General's challenge to the Affordable Care Act. This case has been joined by 19 other states, mostly through their attorneys general. All but one of the attorneys general are Republican and, not surprisingly, many are running for higher office.

Before the hearing, there's a modest crowd outside, including a few protestors on both sides. But things seem pretty civil. Once the hearing starts, the Judge grills both sides. At this stage in the case the questions are procedural—can states even bring this case? The Judge seems to suggest that at least some of the claims need a fuller hearing, while other claims should probably be dismissed. He will sort it out and issue an opinion in 30 days.

At several points in the hearing, the lawyers and Judge touch on the heart of the matter: Does the federal government have authority to regulate the provision of health care and health insurance as it does in the Affordable Care Act? Just about every legal expert says yes—ever since the New Deal it’s been settled that Congress has broad authority to regulate commerce. Even the Judge today—known to be a conservative—says some of the states' claims would have made more sense in 1930.

After the hearing, the real hot air starts blowing. The attorneys general of Florida, Alabama, and Utah hold a press conference and rally hosted by the National Federation of Independent Business (NFIB) (in a air-conditioned tent across from the courthouse). One says that everyone in this country already has health care and this new law is an unconstitutional invasion of states' rights. It sounds like a campaign rally.

So there you have it. The legal challenge to health reform is like a lot of the debate that preceded it. It’s a question of do we go backwards—to the legal world of the 1930s and the pre-2010 world of health care insecurity? Or do we fulfill the promise of the new law and keep moving forward?