Schmidt to promptly challenge health law

11/17/2010 12:00 AM

11/17/2010 6:08 AM

TOPEKA — Attorney General-elect Derek Schmidt promised Tuesday that within days of taking office, he will bring Kansas into a legal challenge of the federal health care law approved earlier this year.

Schmidt said he's already consulting with other attorneys general about existing lawsuits in federal courts. A Republican, he takes office Jan. 10.

"It's going to happen very quickly after I assume office," he said. "It will be measured in days at the outside."

Schmidt, the Kansas Senate's majority leader, unseated Democratic incumbent Steve Six, who had refused to have Kansas join other states in challenging the health care law. For Schmidt and other critics of the law, a key issue is its mandate that most Americans buy health insurance, starting in 2014.

Schmidt said he's most likely to try to intervene in a federal lawsuit pending in Florida, involving 20 other states. Virginia has filed its own lawsuit.

He said he hasn't made a final decision but could have an announcement before he's sworn in.

Six has said the law doesn't violate the U.S. Constitution and suggested pursuing a challenge wouldn't be a wise use of state resources.

Timothy Jost, a professor at Washington and Lee University law school in Virginia, said Tuesday that even if the federal law is struck down, Kansas loses nothing by staying out of any challenge.

"There's no legal reason to get involved at all,'' Jost said. "No court is going to hold that the law is unconstitutional in 20 states and not in the rest of them.

"The only question is if Kansas has money to burn."

But Schmidt said Kansas' involvement is at least symbolically important, especially if a majority of states challenge the law.

In Ohio, Attorney General-elect Mike DeWine, also a Republican, has promised to have his state join others in challenging the law. He defeated Democratic incumbent Richard Cordray, who resisted a legal challenge.

"It's really not about health care," Schmidt said. "It's about the constitutional limits on the power, scope and cost of the federal government."

Jost said Congress' constitutional power to regulate interstate commerce allows it to regulate health insurance. He said the mandate ensures that the health insurance market works following other changes, such as a ban on denying coverage to someone over a pre-existing medical condition.

"Getting involved in these cases would be a bad decision from a policy perspective and a legal perspective," Jost said. "The question comes down to whether this is a good political decision."

Schmidt said he expects Kansas to spend only a few thousand dollars on a legal challenge, if that. He said the outcome could define the relationship between the states and the federal government for a generation.

"A great number of Americans believe that the federal government's reach has extended beyond what the Constitution allows, and that's why so many citizens, so many states, have begun to push back," he said. "It is a fight worth fighting."

Schmidt also said he doesn't see a challenge of the health care law distracting him and his office from other duties.

"It is possible to walk and chew gum at the same time, and we will do that," he said.

He received 55 percent of the vote in what became the first election since 1964 in which the GOP swept all statewide and congressional races in Kansas.

An Iowa group, American Future Fund, ran television ads attacking Six over health care, with its spending appearing to approach $1 million by late October.

A group financed largely by the Democratic Attorneys General Association spent $889,000 through late October, mostly on ads praising Six, but on issues other than health care.

Schmidt said few voters could have been unaware of the debate over challenging the health care law, and "Kansans spoke clearly."

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