My Attorney General in Florida, Bill McCollum, is leading 13 AGs in filing suit against the HCR bill. The filing is here.
What's most interesting about the lawsuit is that they're trying to use the constitutional challenges to the 'mandate' elements to strike down the whole law (Bill McCollum alluded to just that strategy last night on Greta Van Susteren's show on Fox News). But there's a legal twist that may cause them serious pain, which is the concept of 'severability'. See below the fold for more . . .
The lawsuit is only challenging three specific elements of the new law: 1) That the states can't afford the enforced expansion of Medicaid, but can't reasonably opt-out, which amounts to an unconstitutional abuse of Federal power; 2) That the tax penalty for failing to buy insurance is an "unapportioned tax", therefore unconstitutional; and 3) That the mandate itself is unconstitutional. It doesn't raise any challenges to the other aspects of the law, but asks the Court to find the whole law unconstitutional. Unfortunately for them, that's not how these things work.
In a nutshell, severability says that if any element of the bill is found unconstitutional, the rest remains intact. If you've ever waded through the legalese in any contract you've ever signed (an apartment lease, car rental agreement, etc.), you'll see similar 'saving' language, designed to make sure that the entire agreement isn't wiped out by one poorly-written section. The same thing exists in legislation (it's the lawyers' way of making sure all of their work doesn't amount to nothing if they accidentally insert a misplaced comma :).
What's the potential impact of severability in the case of the health care legislation? Well, even if the lawsuit succeeds in striking down the mandate, it's quite likely that all of the rest of the elements (no pre-existing conditions, no recission, etc.) will be saved, and will stay in effect. I'm no economist, but all of my reading to date suggests that this will create an unsustainable problem for insurers, as they'll be required to provide coverage to anyone who applies, but won't have the benefit of a spread-out risk pool to cover their expenses. This will have the likely effect of chasing a number of private insurers out of the market altogether. The most logical entity to fill the coverage gap would be the government (Alan Grayson's Medicare-for-All bill would be a quick way to fix the problem), which leads us in short order to something very much like single-payer (through the back door).
So, these quite clever Republican AGs (with the help of a Louisiana Dem), may be helping to usher in the public-option/single-payer plan that the progressives have been hoping for, even faster than we might have managed to achieve it through a strictly legislative battle. Thanks to Bill McCollum and his buddies for all their hard work (though I won't be sad to see him lose his job and fail in his attempt to be 'promoted' to Governor! :).
Update: Yikes, I guess I should have been clearer that I wasn't really serious about supporting the Republican AGs, I was actually just trying to point out the giant potential unintended consequence of their action (the title was really just to try to gin up some traffic). I'll be more careful choosing my words next time. Just to be clear, I'm not a 'purist'--I'm quite happy with what we achieved (and will achieve) this week, and made my fair share of calls to get it done (here's hoping that our Sen. Nelson gets on board). Finally, in response to pamelabrown, if it came across that I'm in any way supporting or encouraging (even accidentally) Bill McCollum's campaign, I humbly apologize. Alex Sink will be a great governor, and we're doing everything we can down here in SWFL to get her elected.