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Posted: Thursday, July 01, 2010

Invoking the Founding Fathers with a dramatic statement that it is "time for us to breathe deeply this American air," Gov. Sean Parnell announced Alaska will join 19 other states suing the federal government, alleging the recently passed health insurance legislation is unconstitutional.

Photo By Brielle Schaeffer
Photo By Brielle Schaeffer
Local band AK Free Fuel (from left to right, Nuson Smith, Chris Beach and Pete Jackson) will play concerts at Hooligans Friday and Saturday nights at 9 p.m. to promote the release of their self-titled debut CD.

Citing the "unprecedented" expansion of Congressional power requiring all citizens to purchase health insurance as a condition of legal U.S. residence, Parnell and Attorney General Dan Sullivan held nothing back in declaring the individual mandate coercive and a threat to the liberty of both Alaskans and Americans.

Sullivan prepared a 49-page analysis for Parnell analyzing the legislation requirements, Supreme Court case law regarding the Constitution's commerce clause and reports on precedent for an individual mandate by the Congressional Budget Office and the Congressional Research Service.

The lawsuit against the federal government was filed initially in Florida after President Barack Obama signed the first of two companion bills March 23 by state Attorney General Bill McCollum. It contends that the commerce clause does not permit, and has no precedent for permitting, Congress to mandate citizens engage in an economic transaction such as purchasing a government approved health insurance policy.

The commerce clause is found in Article I, Section 8 of the Constitution and states Congress has the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Under the new law, individuals who do not purchase health insurance must pay a fine of $695 or 2.5 percent of their income, whichever is higher.

"If the federal government can mandate commerce, there is little left that the federal government cannot do," Parnell said. "Americans have fought against this kind of coercion from the beginning."

In its 1994 report during the push for health care reform under President Bill Clinton, the CBO stated the individual mandate was an, "unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States."

In July 2009, the Congressional Research Service called the individual mandate a "novel issue."

"Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal," according to the CRS.

Before the press conference was over, Alaska's Congressional delegation had already begun to weigh in.

Sen. Mark Begich, who voted for the bill, blasted the decision.

"At a time when Alaska's unemployment rate is at record highs and families are struggling to make ends meet, the administration of Governor Sean Parnell has decided to spend countless hours and hundreds of thousands of dollars on a lawsuit of dubious merit which is unlikely to be successful," Begich said in his prepared statement.

Parnell said that after consulting with the Florida AG, the cost to Alaska for joining in the lawsuit will be about $5,000.

Florida will file an amended complaint in May, the federal government will file a motion to dismiss the lawsuit in June and the states will file a motion for summary judgment (asking the court to rule in their favor with no facts in dispute) that could be heard by the fall.

From there it likely will be appealed to the 11th Circuit Court and ultimately the Supreme Court. The suit will not affect implementation of the bill as it is not seeking an injunction. The individual mandate does not take effect until 2014.

Sullivan said that while there has been a contentious debate on the merits of the health care legislation, he said there is "no debate" Congress has limited enumerated powers under the Constitution and that the individual mandate is "pushing beyond the scope of anything ever done before."

Sullivan said no Supreme Court cases struck down any laws based on the limits of the commerce clause between 1937 and 1995, but that recent cases have expressed the need for limits.

"It can't be unlimited," Sullivan said of Congress' power under the commerce clause. "It collapses the whole structure of the Constitution."

Sullivan said achieving more access and affordability to health care was a "laudable goal," but not one to be achieved through "Constitutional shortcuts."

Sen. Lisa Murkowski, who voted against the bill, expressed support for a court remedy.

"I am looking for ways to repeal the most egregious parts of the law - the tax hikes, Medicare cuts and increased premiums - and replace them with proposals that will reign in the spiraling costs of health care, such as junk lawsuit reforms and allowing insurers to sell across state lines," she said in her prepared statement.

"But because President Obama is likely to veto any Congressional efforts to repeal the health care plan, I am highly encouraged that Alaska has chosen to join 19 other states to challenge the Constitutionality of this law."

Rep. Don Young weighed in with praise for Parnell and Sullivan.

"I commend Governor Parnell and Attorney General Sullivan for taking a step toward ensuring freedom for Alaskans," Young said in his statement. "The recently passed health care legislation was a steep infringement on the liberties of the American people and an intrusion into their lives. The health care legislation is absolutely unconstitutional and joining in this lawsuit is the right thing to do for Alaskans."

Andrew Jensen can be reached at andrew.jensen@alaskajournal.com.



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