Lawsuit against health overhaul is a bargain, state says

$5,000: State officials say no more will be spent to fight mandatory insurance.

April 25, 2010 

WASHINGTON -- Lawyers rarely work for free, let alone for a discount, so Alaska's getting a bargain in the lawsuit it joined this week seeking to overturn the new federal health care law.

The state has committed to spending $5,000 on its share of the multi-state suit challenging the constitutionality of the mandate that people buy health care insurance or pay a fine. The 20-state consortium, led by Florida, aims to end up in front of the U.S. Supreme Court.

But Alaska has vowed not to spend a penny more than $5,000 to be a part of the litigation, said Bill McAllister, a spokesman for Alaska Attorney General Dan Sullivan. Sullivan and Alaska Gov. Sean Parnell re-emphasized their commitment to low-cost legal action after they were criticized by the only Democrat in Alaska's congressional delegation: Sen. Mark Begich. Begich suggested the suit would be pricey and called it of "dubious merit."

"Regardless of the arrangement between Florida and their law firm, regardless of what it actually costs to get this done, the state of Alaska will not spend more than $5,000 on outside counsel," McAllister said in an e-mail.

Florida Attorney General Bill McCollum, whose state is the lead plaintiff in the case, has pledged that the 20-state consortium will keep costs down, too. They don't intend to spend more than $50,000 on the lawsuit.

Alaska and the other states involved -- led mostly by GOP governors or attorneys general -- don't even have to do much work for their money.

As the lead plaintiff, Florida will be shouldering the bulk of the effort. McCollum has assigned seven people within his office to handle the work, and hired the Washington, D.C., law firm Baker and Hostetler to represent the states. McCollum, who is running for governor in Florida, lobbied for the firm as recently as 2006.

Its lawyers, David Rivkin and Lee Casey, have lowered their hourly fee to keep costs under $50,000. Rivkin normally is paid $900 an hour, said Ryan Wiggins, a spokeswoman for McCollum.

No one disputes the notion that it'll cost $50,000 to mount a multi-state lawsuit filed with the express intention of being argued in front of the U.S. Supreme Court. Even fast-moving, relatively uncomplicated cases that end up in front of the nine justices can reach toward $1 million.

But Rivkin is passionate about this issue, Wiggins said, and said he'd do it for a discount. Rivkin, who worked on energy issues in President George H.W. Bush's administration, also was a domestic policy adviser to former Vice President Dan Quayle.

"He believes it's a worthwhile case," Wiggins said of Rivkin. "He's a constitutional attorney and he believes this is a firm violation of the Constitution."

Rivkin and Casey did not respond to a request for an interview.

The lawsuit zeros in on the commerce clause of the Constitution, which gives Congress the authority to regulate interstate commerce. Alaska and the other states are arguing the mandate that individuals purchase insurance is unprecedented under the commerce clause, because uninsured individuals aren't participating in commerce.

Many constitutional law experts say that the health insurance mandate falls within the constitutional purview of Congress. They say there are plenty of other cases that show Congress has just as much authority to regulate economic inactivity as it does activity.

Florida intends to pay a maximum of $6,000 toward the attorneys it hired -- the rest of the money is being split by the other states in the case. Many of those states say they believe it's a bargain, considering the looming cost of the health care overhaul.

"We don't expect the government to roll over and give up easily," said John Swallow, chief deputy attorney general in Utah. "It's been an on-the-spot reaction from the 20 to 25 states that will eventually be in this, that we've got to stand up against this. We're just all uniformly, categorically saying this doesn't do what the federal government says it's supposed to do."

They're also not spending much time on it, said a spokesman for Washington Attorney General Rob McKenna, who joined the lawsuit over the objections of Gov. Chris Gregoire, a Democrat.

"Cost isn't the only factor as to why it's important for other states to join in, there's a powerful statement by signing on," said McKenna's spokesman Dan Sytman. "The most important thing is that the top legal officers look at the issue and have signed on."

Other Republican attorneys general have joined the suit over the objections of Democratic governors. The governors of Colorado, Pennsylvania, Michigan and Washington all are considering banding together for representation in their fights against their own attorneys general, the Seattle Times reported.

The other states in the lawsuit are Alabama, Colorado, Idaho, Louisiana, Nebraska, South Carolina, South Dakota, Texas, Arizona, Georgia, Indiana, Mississippi, Nevada and North Dakota. Virginia has a separate suit.

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