Schmidt’s pledge to join ACA challenge bolstered candidacy

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.

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.”

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.

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