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Legislature gives authority to sue feds over health care

The Legislature approved on March 31 a measure that gives Gov. Jan Brewer the authority to sue the federal government over the recently enacted health care law.

The Republican-led House and Senate also passed a “postcard” asking Congress to repeal the health care law.

But some questions remained, and the legislation’s supporters failed to say where money for the litigation would come from.

Instead, supporters focused on the cost associated with implementing the new health care law for Arizona, which is reeling from a historic, multi-year budget deficit.

Senate Majority Leader Chuck Gray said the new federal law would cost Arizona more than $11 billion over 10 years, an estimate from the Arizona Health Care Cost Containment System.

“I’m wondering where $11.6 billion is going to come from over the next 10 years,” he said when asked where the money for the litigation would be coming from. “So I think that we can afford this lawsuit much more than we can afford the mandate from the federal government.”

But Democrats didn’t buy the argument.

They said the state does not have a standing to sue and called the lawsuit frivolous and a waste of taxpayer dollars at a time when the state has cut down on services and programs to address a budget deficit.

“We are squeezing little people and now we are saying that we have money but we are not going to tell you where it’s coming from,” said Sen. Paula Aboud, a Tucson Democrat. “It’s really evasive to me and very insulting, on behalf of the citizens of Arizona, that you will not give us a straight answer.”

As expected, the Senate passed S1001 and SCM1001 along partisan lines, with Democrats balking at the measures and Republicans supporting them.

S1001 received an 18-11 vote while SCM1001 got an 18-12 vote.
The same held true in the House, where representatives passed S1001 by a vote of 34-24 and SCM1001 by a vote of 34-23.

The governor is expected to sign both measures.
S1001 would authorize the governor and the Legislature to sue the feds over the health care legislation. The legislation declares that the power to require individuals to buy health insurance is not found in the U.S. Constitution, and it permits any individual to opt out of the federal mandate without penalty.
SCM1001 is a “postcard” to Washington. As amended, they now ask Congress to overturn the health care law it just passed.
Sen. Ken Cheuvront, a Democrat from Phoenix, offered amendments to prohibit the use of taxpayer dollars to pay for the litigation and to delete the retroactivity clause in the bill that gives Brewer and the Legislature the power to challenge the federal law in court.
Both amendments were rejected.

The floor debate delved into the practical as well as the theoretical.

Republicans argued that the federal government has no authority to compel individuals to buy health care under the U.S. Constitution. They cited the 10th Amendment, which states that powers not delegated to the federal government are reserved to the states or to the people.

Democrats argued that the health care provisions do not represent a mandate on states because Arizona and others states can opt out of Medicaid, thus avoiding federal requirements.

But that didn’t fly with Republicans.

“If a mugger puts a gun to my head and says, ‘Your money or your life,’ is that a choice? It’s a mandate,” said House Speaker Kirk Adams. “In this situation, the federal government is the mugger.”

Sen. Russell Pearce, a Republican from Mesa, said he finds it amazing that anyone would label the defense of freedom “frivolous.”

“I find it amazing that we think that the federal government can overrule the citizens that they are supposed to govern,” Pearce said, adding the law is an assault on people’s freedom of choice.

Gray asked a rhetorical question: Who would stand up for the people of Arizona if their elected representatives don’t?

Sen. Jack Harper, a Republican from Surprise, said the legislative action seeks to protect citizens from “socialism that is in full bloom in Congress.”

“The socialists of today are only a gun confiscation away from being the communists of tomorrow,” he said.

But Sen. Rebecca Rios, a Democrat from Apache Junction, said anyone, including the governor, can sue the federal government. But the taxpayers shouldn’t have to pay for it.

Rep. Phil Lopes, a Democrat from Tucson, said the authorization for litigation is an “open-ended checkbook” for the cost of the lawsuit.

“It seems clear to me the message we’re sending in this bill,” said Rep. Steve Farley, also a Democrat from Tucson, “is that it’s more important to ship off money to high-priced lawyers … than to insure kids.”

Senate Democrats also said the memorial to Congress sets a dangerous precedence, not because of its content, but because they said the amended version is outside of the governor’s call for a special session.

In her special session call, Brewer had asked for two things – the authority to sue the federal government and a message asking Congress to fully pay for the “mandatory federal entitlement expansions” contained in the health care law.

The memorial is now asking Congress to repeal the law.

How the state has a standing to sue over the requirement on individuals to buy health care under threat of penalty was never fully answered.

In a press conference the day before, Rep. John McComish, the majority leader, said Republican staff attorneys believe the state has standing to sue, but he struggled to explain the rationale for it.
In fact, none of the Republican leaders who showed up for the press conference were able to explain, from a legal standpoint, exactly why they think Arizona has standing to sue the federal government over the health care law on that matter.
Assuming the governor signs S1001 or its identical H2001, the bill becomes effective 90 days after the end of the special session and is retroactive to March 23.
The goal of the retroactivity clause is to allow the governor to file suit now, rather than wait until the bill becomes law.


  1. The Republicans are just losers and this strategy of “repeal and replace” is a losing strategy. The Republicans have proved that after 8 years of controlling the house, senate and the presidency that they have NOTHING to replace this bill with. They have no intention of ever seeing the middle class and the poor having access to health care. They’ll never get any results from sueing the federal government. The Republicans just have to face the fact that middle class and poor Americans are now going to be able to receive health care against the wishes of the Republican party. I DARE you to try to repeal this bill, I DARE you. Even if the Republicans win a majority in the house and senate in November they’ll never get a 2/3 plus majority and Barack Obama will veto every move they make at repealing health care. Ever move the Republicans make is designed to hurt the middle class and the poor, that’s why the passage of this bill was so spectacular. The next step we need to make is to bring in a good public option, ideally Medicare for all Americans. This will free Americans from the blood-sucking private insurance companies who exist only to enrich shareholders. Yes, this is a class warfare and we’re winning. Mark Montgomery boboberg@nyc.rr.com

  2. If the argument is that the 10th Amendment reserves all power to the states, so that citizens can’t be compelled to buy health insurance, then doesn’t the same argument apply to Social Security. Under this theory doesn’t the 10th Amendment mean that citizens shouldn’t be compelled to pay taxes into our Social Security system since the Constitution doesn’t specifically authorize Congress to adopt a Social Security system? Do these GOP legislators understand that their long shot litigation will undermine the Social Security system? What would their constituents on Social Security think of that? I doubt that they would be too happy. It is time to think about the consequences of these GOP arguments.

  3. Dear Reader: It amazes me that States can spend money and work together on things that have no revenue potential and reject ideas that can generate income for millions of citizens, because they say they cannot work with other states. Politics as usual! Autism is a problem that states could work together to fund, save millions in healthcare costs, and change the lives of thousands of children. But it must be a WIN for one side or the other, and thus nothing gets done!

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