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Schmidt’s pledge to join ACA challenge bolstered candidacy

Kansas AG optimistic states will prevail, but Washburn law professor predicts otherwise

By Jim McLean | March 26, 2012

Kansas was among the last of 26 states to join the multistate lawsuit challenging the constitutionality of the Affordable Care Act.

Newly sworn in Kansas Attorney General Derek Schmidt asked to join the lawsuit on Jan. 12, 2011. A federal judge in Florida granted his request about a week later.

That case has now made it to the U.S. Supreme Court, which began an unprecedented three days of hearings on it this week.

Schmidt, a Republican, made a promise to join the lawsuit a cornerstone of his campaign to unseat Democrat Steve Six, who a few weeks before the 2010 election said he had considered the case but had decided against pursuing it.

“It seemed like there wasn’t too much of a constitutional argument to it,” Six told the Lawrence Journal-World at the time. In addition, Six said, he thought that “the cost of getting involved” outweighed any benefits the state would realize if the lawsuit was successful.

Previous coverage of health reform and the Supreme Court

Anticipating the Supreme Court's ruling

Supreme Court to rule Thursday on health care reform
New consumer protections depend on high court's ruling
Court challenge could result in Medicaid cutbacks instead of expansion
GOP promises smaller-scale health care agenda if court strikes down law
Some health system changes will stay, no matter how Supreme Court rules
Obama administration finds 3.1M young adults gained coverage under law
What's at stake for Medicare beneficiaries in health reform ruling
What's at stake for women if health law overturned
Washburn law professor holding to prediction that health reform law will be upheld
Even without the individual mandate, health law would still affect millions

The Great Health Reform Debate: Kansas experts weigh in
"The system we have in this country is a failure because people do not have equal access to care," said retired Stormont-Vail HealthCare CEO Maynard Oliverius. He is one of six Kansas experts who weigh in on the health reform debate ahead of the Supreme Court's ruling on the law.
Watch the six video shorts here.

Oral arguments before the Supreme Court

Day 1 — Anti-Injunction Act
Guide to what happened at the Supreme Court
Day 2 — Individual Mandate
Kansas AG Schmidt encouraged by justices' skepticism of health reform law
Justices grill Obama administration on health law
National media round-up
Day 3 — Medicaid Expansion and Severability
Vigorous severability, Medicaid questions

Preview to the Supreme Court oral arguments

Schmidt’s pledge to join ACA challenge bolstered candidacy
Full interview: Derek Schmidt on the legal challenge of the health reform law
The Health Law and the Supreme Court: A primer for the upcoming oral arguments
Video explainer: The health care reform challenge before the Supreme Court

Related coverage

Kansas rejects $31.5 million for insurance exchange



More archived stories and in-depth information on the Affordable Care Act

Day 3 — Medicaid Expansion and Severability

Vigorous severability, Medicaid questions

Day 2 — Individual Mandate

Kansas AG Schmidt encouraged by justices' skepticism of health reform law

Justices grill Obama administration on health law

National media round-up

Day 1 — Anti-Injunction Act

Guide to what happened at the Supreme Court

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Additional coverage

Full interview: Derek Schmidt on the legal challenge of the health reform law

The Health Law and The Supreme Court: A primer for the upcoming oral arguments

Video explainer: The health care reform challenge before the Supreme Court

Six’s refusal to join the lawsuit triggered an onslaught of negative advertising during the final weeks of the campaign. An Iowa-based group called American Future Fund spent about $1 million on television ads that criticized Six for refusing to join the legal challenge to the ACA. No one yet knows who funded the ad campaign because state law doesn’t require political action committees to disclose their donors.

Not expensive after all

Some of the first states to join Florida in the case contributed $20,000 each to the cause. States that later joined the case paid $10,000 or $5,000. But Schmidt said because the plaintiffs wanted to reach a critical mass of states, Kansas was allowed to join the lawsuit at no cost.

“There was obviously some attraction, from the standpoint of those states, to having more than half the states joined in this battle,” Schmidt said in an interview with the KHI News Service (read the full interview here). “At the same time, I had an interest in not having Kansas spend money on the challenge. And so we were able to work out an accommodation where we joined but weren’t asked to join financially.”

Even so, Schmidt said, “we’re full partners in the litigation.”<a name="continued"></a>

Schmidt is in Washington, D.C., this week sitting in on the arguments. He said he wanted to attend because the case is “a big piece of history and Kansas is part of it.”

Strong case?

Schmidt said he believed the states challenging the health reform law had strong arguments on the two main issues in the case: That Congress exceeded its constitutional authority by mandating that virtually all Americans purchase health insurance and by requiring states to significantly expand eligibility for their Medicaid programs.

The federal government has the power to regulate interstate commerce. But, Schmidt said, it doesn’t have the authority to compel commerce so that it can regulate it.

“Part of our argument, and we think it’s a very strong legal argument, is that it is such an attractive power. The fact that Congress hasn’t used it in more than two centuries suggests that nobody thought it existed until a creative Congress came up with it two years ago,” he said.

On the second issue, Schmidt said even though the courts have repeatedly ruled that Congress has the authority to require that states do certain things in exchange for federal money, they have ruled that there are limits to that power.

“This is the case where the court needs to find that Congress has exceeded the limit,” he said.

Audio clip

Schmidt says states on solid ground in ACA challenge

The reform law’s expansion of Medicaid eligibility is significant, more so in Kansas than in many other states. Currently, about 380,000 low-income, elderly and disabled Kansans are enrolled in Medicaid. That number is expected to grow by at least 130,000 if and when the eligibility expansion takes effect.

Today, excluding the disabled, only adults with dependent children with incomes below about 27 percent of the federal poverty level can qualify for Medicaid. That means that a family of four can’t have an income above $6,035 and qualify. But starting in 2014, if the law is upheld, all Kansans under age 65 with incomes up to 133 percent of poverty would be eligible for Medicaid. That means the same family of four could have an income of up to $29,726 and be eligible.

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Though the states’ arguments against the law may sound reasonable on their face, Washburn University law professor Bill Rich said he doesn’t think they have a strong legal case. His view was shared by a large majority of legal experts surveyed by the American Bar Association, 85 percent of whom predicted the law would be upheld.

“I don’t think either of the arguments (Kansas and the other states) are making is likely to be persuasive,” said Rich, who teaches constitutional law.

Recent cases have reinforced the federal government’s far-reaching ability to regulate commerce and its authority to attach conditions to federal money, he said.

In addition, Rich said, the states’ contention that budget pressures make it unlikely the federal government would keep its promise to initially pay 100 percent of the cost of the Medicaid expansion isn’t a strong legal argument.

“The argument that something might be coercive in the future would not be enough to rule it unconstitutional today,” Rich said.

Previous coverage of health reform and the Supreme Court

Anticipating the Supreme Court's ruling

Supreme Court to rule Thursday on health care reform
New consumer protections depend on high court's ruling
Court challenge could result in Medicaid cutbacks instead of expansion
GOP promises smaller-scale health care agenda if court strikes down law
Some health system changes will stay, no matter how Supreme Court rules
Obama administration finds 3.1M young adults gained coverage under law
What's at stake for Medicare beneficiaries in health reform ruling
What's at stake for women if health law overturned
Washburn law professor holding to prediction that health reform law will be upheld
Even without the individual mandate, health law would still affect millions

The Great Health Reform Debate: Kansas experts weigh in
"The system we have in this country is a failure because people do not have equal access to care," said retired Stormont-Vail HealthCare CEO Maynard Oliverius. He is one of six Kansas experts who weigh in on the health reform debate ahead of the Supreme Court's ruling on the law.
Watch the six video shorts here.

Oral arguments before the Supreme Court

Day 1 — Anti-Injunction Act
Guide to what happened at the Supreme Court
Day 2 — Individual Mandate
Kansas AG Schmidt encouraged by justices' skepticism of health reform law
Justices grill Obama administration on health law
National media round-up
Day 3 — Medicaid Expansion and Severability
Vigorous severability, Medicaid questions

Preview to the Supreme Court oral arguments

Schmidt’s pledge to join ACA challenge bolstered candidacy
Full interview: Derek Schmidt on the legal challenge of the health reform law
The Health Law and the Supreme Court: A primer for the upcoming oral arguments
Video explainer: The health care reform challenge before the Supreme Court

Related coverage

Kansas rejects $31.5 million for insurance exchange



More archived stories and in-depth information on the Affordable Care Act





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