KHI News Service

Kansas solicitor general goes to D.C. for health reform case

KU law professor Stephen McAllister to help prep states' attorney in ACA challenge

By Jim McLean | March 19, 2012

Attorney General Derek Schmidt has dispatched Kansas Solicitor General Stephen McAllister to Washington, D.C., to help prepare the attorneys representing Kansas and 25 other states in their challenge of the federal health reform law.

The U.S. Supreme Court is scheduled hear oral arguments in the case next week.

McAllister, a former law clerk for two Supreme Court justices, will spend this week helping prepare former U.S. Solicitor General Paul Clement to present the states’ case. Clement, who served in the most recent Bush administration, will present the states’ oral arguments to the court.

McAllister has served as state solicitor general for the past five years but has assisted the state on constitutional cases since 1996. He also is a law professor at the University of Kansas.

Neither McAllister nor Schmidt will help argue the case, but Schmidt is scheduled to travel to Washington to sit in on the proceedings.

The states are challenging the Affordable Care Act provision that requires virtually all Americans to purchase health insurance starting in 2014 or pay a tax penalty and the ACA's expansion of the Medicaid program. Schmidt has called the law an “unprecedented federal power grab.”

“This is the first time in the history of the United States that a majority of the states have joined together in a legal challenge to the authority of the federal government,” Schmidt said. “It’s a big deal.”

Schmidt and the attorneys general in the other states represented in the case argue that the mandate requiring Americans to purchase health coverage exceeds the federal government’s constitutional authority to regulate commerce. And they contend that the scale of the Medicaid expansion is beyond what the courts have traditionally allowed the federal government to require of states in exchange for funding.

Attorneys general for 12 other states recently filed a friend of the court brief in the case that argues the Medicaid expansion, which is scheduled to start Jan. 1, 2014, “is entirely consistent with the history of the program.”

Because many states have different Medicaid eligibility standards, the health reform law would affect some more than others. Kansas would be among the most affected because its eligibility limits for adults are among the most restrictive in the nation. The new rules are expected to increase Medicaid enrollment in Kansas by at least 130,000.

The federal government has promised to initially pay 100 percent of the cost of the expansion. After the first few years, the federal share of the cost of serving those made eligible for Medicaid by the Affordable Care Act would shrink to 90 percent, where it would remain indefinitely.

Schmidt and other Kansas policymakers have said that the growing federal budget deficit and other financial pressures would make it difficult for the federal government to keep its promise to cover that much of the Medicaid costs.