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Lawyer predicts top court to repeal part of health care law

CARSON CITY — The Las Vegas lawyer representing Nevada in the fight against the president’s health care program expects the U.S. Supreme Court to repeal a key provision of the law and potentially save the state hundreds of million of dollars.

Mark Hutchison predicts a divided court will strike down a requirement of the Patient Protection and Affordable Care Act that individuals must buy private health insurance if they are not covered through their companies.

If the court kills that portion of the act, and with it the entire law, then the state would save an estimated $567 million in additional Medicaid costs between 2014 and 2019, according to the state Department of Health and Human Services.

The additional cost would come because state officials estimate as many as 4,000 additional residents a month would receive free medical care through the Medicaid program. More than 306,000 Nevadans already receive Medicaid.

Although Hutchison won’t speak or even get a seat in the courtroom, he will be in Washington today through Wednesday when the Supreme Court hears oral arguments on the 2010 law that many critics call "Obamacare." The court’s decision is expected in June.

When the act was passed, then-Gov. Jim Gibbons authorized Hutchison to represent the state — for free — in its opposition to the health care act after Attorney General Catherine Cortez Masto refused. When he became governor in 2011, Brian Sandoval told Hutchison to continue.

Sandoval said Friday he has met with Hutchison and thanked him for representing the state. As a former federal judge, Sandoval said he expects the Affordable Care Act will be declared unconstitutional.

"Never has the federal government required someone to purchase insurance under the threat of penalty," the governor said.

Nevada joined Florida and 24 other states in appealing the constitutionality of the law.

Last August, the federal appeals court in Atlanta declared the law unconstitutional. Two other appeals courts have upheld the law, while another declared the issue is moot until the federal government begins to penalize individuals in 2015 who refuse to purchase insurance.

For Hutchison, the constitutional question is not a close call: Congress never has required a citizen to buy a product. In this case, individuals would have to buy insurance from private companies, even if they are healthy and don’t want to buy it.

The idea of these required purchases is to subsidize the costs of insurance for older and less healthy people. Various studies show that 15 million to 20 million would not purchase insurance without the mandate.

"This case involves the constitutional issue of our time: Does Congress possess the authority under the U.S. Constitution to compel American citizens to purchase a product — in this case an insurance policy heavily regulated by Washington?" Hutchison said. "Since the first Continental Congress convened in 1774, Congress has never before required Americans to purchase any product to maintain their good standing as citizens in this country."

The act’s supporters contend Congress can compel such purchases under the Inter­state Commerce Clause, which allows Congress to regulate the flow of goods and business between the states.

But Hutchison and others maintain if this clause can be used by Congress to force people to buy health insurance, then Congress can control virtually every­thing that occurs in the states and upset the balance of power between the states and federal government.

Hutchison is predicting a 5-4 vote favoring the appeal by Nevada and the other 25 states.

He is confident that Supreme Court Justice Anthony Kennedy, based on his vote in a 1995 case, will oppose such expansion of federal power through the Interstate Commerce Clause. But others believe conservative Justice Anton Scalia, based on his vote in a case allowing the federal government to bust marijuana cooperatives in states with medical marijuana laws, will be the swing vote to uphold the health care law.

Recent polls show Americans are about equally divided on the Affordable Care Act.

Although he is working for free, Hutchison, now a Republican candidate for state Senate, clearly has increased his name recognition. That could help him as he battles Democrat Benny Yerushalmi in District 6.

Democrats hold a 2,600 registered voter advantage in the district, which lies in the far west portions of Las Vegas. Yerushalmi lost two years ago by 4,500 votes to Republican Elizabeth Halseth in District 9 where Democrats enjoyed a 3,200 voter advantage.

Yerushalmi declined an invitation to talk about Hutchison and his representation of the state in this case.

Hutchison said he was not thinking about running for office when he agreed to represent the state in the litigation. Only when state Sen. Allison Copening, D-Las Vegas, indicated she would not seek re-election did he consider running, he said.

"I don’t know if it gives me an advantage or not," Hutchison said of his free legal work for Nevada. "This is a very important issue for Nevada."

If the act is upheld by the high court, Sandoval said earlier this month, the increased Medicaid costs would prevent him from ending the furloughs that state employees have taken for the last three years. The furloughs have meant 4.6 percent to 4.8 percent reductions in state employee pay.

Regardless of her personal feelings, Democrat Masto should have represented Republican governors Gibbons and Sandoval in the litigation against the Affordable Care Act, Hutchison said.

But Masto questioned why Nevada needed to join the litigation when so many other states already had challenged the law.

"Therefore, Nevada can ride for free at this time by allowing other states to foot the bill," Masto stated at the time. "There is no practical reason for Nevada to join the litigation, absent a clear and separate legal interest that Nevada has apart from those other states."

Ultimately, Hutchison is footing the bill. He estimated his pro bono work has cost him more than $10,000.

He doesn’t regret his decision to work for free.

"The Supreme Court decision in this case will be a watershed event in the state and national elections this year. I really believe if we allow the health care legislation to continue, it fundamentally will change the relationship between the states and federal government."

Contact Capital Bureau Chief Ed Vogel at evogel@reviewjournal.com or 775-687-3900.

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