Peter Kinder files lawsuit challenging U.S. health-care law

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buy this photo 15 APRIL 2010 -- CLAYTON, Mo. -- Missouri Lt. Governor Peter Kinder. Photo by Sid Hastings | For the Post-Dispatch

Plantiffs' arguments

A lawsuit filed by Lt. Gov. Peter Kinder and three other plaintiffs makes eight arguments that the new federal health care law is unconstitutional:

• The law violates the 10th Amendment to the U.S. Constitution, infringing on Missouri's state sovereignty by forcing state officials to enforce "a federal regulatory health-care scheme."

• The law violates constitutional principles that bar the federal government from mandating "the terms of compensation a state may pay its elected officers."

• Because Missouri's law mandating autism insurance coverage is above and beyond the requirements of the federal law, the law requires the state to pay an unconstitutional "direct tax" as a penalty for having a law not in compliance with federal requirements.

• By requiring Medicaid — which is funded in part by the state — to cover more people, the federal government is forcing a budget increase on the state that could violate both the state and federal cons

JEFFERSON CITY • Lt. Gov. Peter Kinder doesn't believe the federal government has the right to increase the cost of his state-provided health insurance. That's one of several constitutional arguments Kinder and three other plaintiffs make in a federal lawsuit filed Wednesday seeking to overturn portions of a sweeping federal health care law.

The lawsuit is the latest round fired in an intense national political battle over the federal health care law passed by Congress. The law seeks to increase the number of Americans covered by health insurance by blocking insurance companies from excluding those with pre-existing conditions, and also by requiring individuals to buy health insurance.

The law, pushed by President Barack Obama and Democrats, has been derided by Republicans, who call it "Obamacare."

The individual insurance mandate in particular has spurred protest by conservative politicians across the nation, who say the federal government has overstepped its bounds. That argument is behind a measure on the Aug. 3 ballot in Missouri that seeks to allow the state's citizens to opt out of the federal mandate. And it's one of the arguments in Kinder's lawsuit.

Kinder and three women, including Dale Lee Morris of south St. Louis County, argue in the lawsuit that various provisions of the law violate either the U.S. Constitution, the state constitution or both.

In the case of Morris, a 74-year-old who pays for supplemental Medicare coverage called "Medicare Advantage," the lawsuit argues that the federal law — which cuts subsidies that pay for such supplemental coverage — reduces her access to health care. The lawsuit also takes aim at a provision in the law that carves out senior citizens in Florida, allowing them to keep their Medicare Advantage.

"Many Missourians will lose the options for health insurance they currently enjoy," Kinder said in a statement after filing the lawsuit in Cape Girardeau. "Missourians have less health care coverage after the federal law was passed than they did before it was passed."

Democrats said Kinder's lawsuit was a political ploy and called on him to release the donors to his so-far-private legal fund.

"For months he has refused to disclose his donors," said Missouri Democratic Party spokesman Ryan Hobart. "Missourians deserve to know if Peter Kinder is allowing his office to be subsidized by the insurance industry and its lobbyists or candidates who want this law repealed. Instead, up to this point, all of that information has been hidden from the public, even though Lieutenant Governor Kinder is using state resources to publicize his actions."

Kinder spokesman Gary McElyea said Kinder plans to reveal the list of donors, except for those who request anonymity. The Post-Dispatch has asked for a list of donors but has not yet been provided one.

Kinder argued he was filing the lawsuit in both his professional capacity — as the state's senior citizen advocate — and as a private citizen.

Kinder initially set up a private company to raise money for the lawsuit, then dissolved that company and set up a not-for-profit corporation called Health Care in Action Inc. to do so. Kinder's primary political adviser, lobbyist David Barklage, is on the board of the corporation.

At one point, Kinder sought to join 20 attorneys general from other states who filed a similar federal lawsuit in Florida. McElyea said Kinder chose not to do so in part because, unlike the attorneys general, he did not have the authority to file the lawsuit on behalf of the state and use state funds.

Kinder and other Republicans had urged Missouri Attorney General Chris Koster, a Democrat, to join the Florida lawsuit, but Koster declined.

The Obama administration has argued in Florida and Virginia — which also filed a lawsuit — that the claims have no merit.

But that's not necessarily the case, said Randy Barnett, a professor of constitutional law at Georgetown University Law School.

In general, all of the lawsuits against the federal health care law share two key arguments, Barnett said. They argue that Congress violated the commerce clause of the U.S. Constitution by requiring an individual to buy insurance; and they argue that by tying federal Medicaid funding to changes in health care law, that the federal government "commandeered" state law.

"Both of these claims are very serious," Barnett said. "There's never been any such mandate. It's unprecedented. These are not frivolous claims."

Barnett said he expects that one of the lawsuits opposing the federal health care law will end up in the Supreme Court.

The other plaintiffs in the Kinder lawsuit are Samantha Hill of Johnson County and Julie Keathley of Stoddard County. Both have GOP connections: Keathley is the widow of Michael Keathley, the former head of the Office of Administration under ex-Gov. Matt Blunt; Hill is a spokeswoman for a Republican candidate for Congress.

Keathley's 8-year-old son suffers from autism, and the lawsuit argues that Missouri's new autism insurance mandate is stronger than the federal law, and therefore the federal law diminishes her health care coverage.

Gov. Jay Nixon also was in Cape Girardeau on Wednesday as Kinder filed the lawsuit, hoping to bring attention to the state's autism mandate, which he signed earlier this year. Kinder has said he is considering a challenge to Nixon in the 2012 race for governor.

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