Nevada joins health reform lawsuit

Gov. Jim Gibbons on Friday aggressively defended his decision to involve Nevada in a controversial lawsuit aimed at blocking implementation of a major federal reform of the nation’s system of paying for health care.

Gibbons, who’s lagging in his campaign for a second term, called the Patient Protection and Affordable Care Act "a national disgrace" and challenged federal lawmakers, including Sen. Harry Reid, D-Nev., to scrap it and start over in their quest to remake the health care system.

In a public appearance in Las Vegas, Gibbons took specific aim at Reid, who as Senate majority leader played a key role in shepherding the legislation through Congress and to the desk of President Barack Obama.

Gibbons made the appearance to answer questions about the amended petition filed earlier in the day that added Nevada and several other states to a lawsuit seeking to block the law filed in federal district court in Florida.

"This is a violation of the Constitution," Gibbons said. Reid "may view that the Constitution is subservient to some health care right of some people. I don’t. I think the Constitution is the supreme law of the land."

Gibbons says a mandate in the bill that will require citizens to buy health insurance or face a fine is the most egregious overreach, but he discussed several other aspects he thinks are unconstitutional.

Reid spokesman Jon Summers said the senator stands behind the law and said Gibbons, by pushing the lawsuit, is "clearly standing with the big insurance companies and not Nevada families."

The filing was made in U.S. District Court in Pensacola, Fla. It adds Nevada to a group of 19 other states, two individuals and the National Federation of Independent Business.

It seeks to block the health reform law by arguing it is an unconstitutional violation of the 9th and 10th amendments.

Mark Hutchison, a Las Vegas lawyer who agreed to represent Nevada in the case at no cost to taxpayers, says the insurance mandate in the law is an unprecedented attempt by Congress to regulate inactivity.

"It is saying to individual citizens, you have to engage in commerce, you have to purchase insurance from an approved insurance company," he said.

The defendants in the case, a group that includes Health and Human Services Secretary Kathleen Sebelius, Treasury Secretary Timothy Geithner and Labor Secretary Hilda Solis, have yet to respond to the amended complaint.

But a similar case in federal court in Michigan filed by the conservative Thomas More Law Center did generate a response to many of the same arguments made by plaintiffs in the Florida case.

In Michigan health law defenders say the Constitution specifically authorizes Congress to regulate interstate commerce and that the mandate to buy insurance falls within that authority.

In short, the defense argues that because the mandate is crucial to spreading risk and cost across the entire population it is also critical to making the health reform law accomplish the goal of improving the way health insurance is bought and sold.

The defense argues the decision to eschew purchasing insurance has "a direct and substantial effect on the interstate health care market" and should be subject to regulation.

Critics have argued Gibbons is pushing the case in order to revive his struggling re-election campaign. Polls show Gibbons trails challenger Brian Sandoval badly among likely Republican primary voters.

Sandoval, a former federal judge, has attracted funding from former Gibbons supporters leaving the governor with little more than the bully pulpit as a vehicle to get his message to voters.

Gibbons maintains the health care case is about policy and principles, not politics.

"I’ve never seen the Constitution be either Republican or Democrat," Gibbons said. "This is clearly me following through with my oath of office that says I will protect the constitution and the people of Nevada."

Legal scholars are divided over whether the new law should be considered constitutional. Robert Kaufman, a law professor at Pepperdine University, says the so-called commerce clause in the Constitution has been stretched beyond the breaking point and that the health law is an example.

"I think we have gone way beyond what the commerce clause was intended to sanction based on any view of originalism," he said, referencing the legal philosophy that the Constitution should be interpreted narrowly and federal government limited to no more than what the document specifically allows.

Carl Tobias, a law professor at University of Richmond, called it a "close question" but expects the lawsuit will ultimately be shot down.

"I think there is an argument, but I don’t think they will win," he said.

Tobias also disputed the notion put forth by Gibbons and others that Nevada should participate in order to ensure the state’s citizens’ rights are protected.

The lawsuit would proceed with or without Nevada, he said.

"I don’t see any real purpose in it," he said. "I don’t think it is going to add anything to the argument to have another state join."

The filing fulfills the promise by Gibbons that he would go forward with legal action despite objections from Democratic Attorney General Catherine Cortez Masto. Masto declined Gibbons’ request to do the legal work after she determined such a move was unlikely to succeed and would waste taxpayer money.

She also said Gibbons doesn’t have authority to go forward on his own and has suggested she might challenge Nevada’s participation. Masto spokesman Edie Cartwright said Friday that Masto had not yet read the amended complaint or decided a course of action.

If the case goes as far as Gibbons thinks it will, Masto will have plenty of time to respond.

"As far as I know we are taking this all the way to the Supreme Court," Gibbons said.

Contact reporter Benjamin Spillman at bspillman@ reviewjournal.com or 702-477-3861.