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Koster's 'amicus' brief upholds health-care reform while challenging individual mandate

This article first appeared in the St. Louis Beacon, April 11, 2011 - Missouri Attorney General Chris Koster appeared to have caught many current and previous political colleagues off-guard today with his friend-of-the-court brief that challenges the mandate in the federal health-care law that requires most Americans to buy insurance by 2014. 

That's particularly true of the Missouri Democratic Party, which declined comment today and referred all queries to him. Koster's brief is expected to rile some party faithful who have maintained that they would view any such filing by Koster, a Republican until mid-2007, as proof that he isn't a true Democrat.

But state Sen. Jane Cunningham, R-Chesterfield and a GOP leader against the mandate, appears to have gotten a heads up. Cunninghan said she had had a hint in a telephone conversation with Koster last week of his plan of action.

"I'm thrilled to death,'' Cunningham said of the brief. She was particularly pleased that Koster's filing cites the anti-mandate resolutions passed by the state House and Senate, and last August's overwhelming statewide vote in favor of Proposition C, which seeks to opt Missouri out of the mandate.

But while his action would appear to satisfy Missouri's top Republicans -- who for months have called on him to join one of the anti-mandate lawsuits -- the language in his brief may not.

In the brief, Koster wrote that he believes that the insurance mandate runs afoul of the U.S. Constitution's "commerce clause,'' which he says "bars Congress from compelling citizens to step into the stream of commerce when they have either neglected or chosen not to do so."

One subhead is particularly provocative: "The Power to Require Individual Citizens to Act to Protect Health is Quintessentially State Police Power."

However, Koster emphasized in a letter sent today to the legislature's leaders: "Our argument against the expansion of Congress' Commerce Clause authority is emphatically not based on any opposition to the expansion of health coverage for uninsured Americans. To the contrary, I favor the expansion of health coverage."

Koster also wrote that he believed that tossing out the mandate would not affect implementation of other parts of the law.

GOP Reaction Mixed

Koster's nuanced stance may explain why the Missouri Republican Party's praise was subdued.

"For more than a year, Missouri Republicans have stridently opposed (President) Barack Obama's health-care law,'' said state GOP executive director Lloyd Smith. "We appreciate Attorney General Chris Koster's willingness to finally join us, though his opposition to the law is not as strong as we would have liked it to be."

Smith went on to note that Lt. Gov. Peter Kinder, a Republican expected to run for governor in 2012, "has led by filing his own constitutional challenge against the bill."

In fact, Kinder is critical of Koster's legal argument and notes that a Florida judge who has ruled against the mandate said its unconstitutionality would toss out the rest of the health-care law.

"AG Koster's amicus brief in the Florida case, while welcome, is a day late and a dollar short," Kinder said in a statement. "It does not adequately defend the Missouri Health Care Freedom Act or respond to the resolution passed by the Missouri General Assembly."

Kinder continued: "With the exception of AG Koster now agreeing that the individual mandate is unconstitutional, we are otherwise disappointed in AG Koster's course of action. His filing of an amicus brief in the Appellate Court hearing the Florida case does not effectively advocate for the interests of Missouri citizens. I continue to urge AG Koster to join the lawsuit that I and other Missouri citizens have filed in federal court in Missouri."

Koster's brief also appears to have ignited more Republican blasts at the state GOP's prime Democrat political targets -- which, for the moment, don't include him:

  • Gov. Jay Nixon, who generally has declined to take a legal position on the mandate by saying his job is to enforce the federal law.
  • U.S. Sen. Claire McCaskill, D-Mo., who Smith asserts "cast the deciding vote to force Obamacare on the nation."

In fact, the national Republican Senatorial Campaign Committee today used Koster's action to blast McCaskill.
"Today's announcement by Attorney General Koster serves as yet another reminder that when it came down to standing up for Missouri or standing with her liberal party bosses in Washington, Claire McCaskill provided President Obama with the 60th vote to ram his massive government health-care bill into law," said NRSC spokesman Brian Walsh. "Given the attorney general's filing today, we look forward to hearing Sen. McCaskill explain to Show-Me state voters why she believes her fellow Democrat is wrong and why she supports the effort to force every Missouri citizen to buy health insurance."

A McCaskill spokeswoman replied in a statement: "Sen. McCaskill believes that the health-care law is a benefit to the country, especially as it relates to reining in abusive insurance industry practices and covering those with pre-existing conditions. However, the constitutionality of the law is up to the courts. Sen. McCaskill would be open to alternatives to the individual mandate if the same coverage and cost savings outcomes are achieved."

McCaskill is among the new law's supporters who note that the mandate was deemed necessary in order to require insurance companies to agree to cover people with pre-existing conditions. Otherwise, those on both sides have contended that no one would purchase health insurance unless they were already sick.

Since then, McCaskill has talked of using incentives or penalties as a substitute for a mandate, should the U.S. Supreme Court toss it out.

Missouri Jobs with Justice, a coalition of more than 100 labor, community, faith and student organizations, issued a statement asserting that Koster "is contributing to the politicization" of the federal health-care law, officially known as the Affordable Care Act.

"Attorney General Koster is late to this game," said Amy Smoucha, health care organizer with Missouri Jobs with Justice, "and his action can only be seen as joining the political circus." 

Smoucha added that "Missouri cannot join the Florida lawsuit because it is on appeal and Koster's brief will have almost no impact on the case.... While Missourians are more concerned about jobs and while tens of thousands of Missouri seniors, small businesses and families are benefiting from the Affordable Care Act, Attorney General Koster just demonstrated he's  more interested in politics."

Koster, meanwhile, has not responded to queries about his decision to file the brief now.

Brief May Be Political Move

On the political front, Koster -- a prolific fundraiser -- has yet to have an announced political challenger in either party to his expected 2012 re-election bid. State Senate President Pro Tem Rob Mayer, R-Dexter, has said that he is mulling over the idea.

Professor George Connor, head of the political science department at Missouri State University in Springfield, said that Koster's decision to file a brief should not necessarily be seen as "bowing to partisan pressures on the Republican side."

"By focusing on the personal mandate, he is following a legal route that potentially resolves a political problem,'' Connor said. "There is wisdom in this."

Connor noted that the law's critics have primarily focused on the mandate, which the professor said has resulted in general public opposition to it. Even so, he added, the public appears to be warming up to other provisions of the health-care law, which Koster indicates that he supports.

"By taking this stand, (Koster) does the least amount of damage within the Democratic Party,'' Connor said. "He may be able to placate Democrats."

If the U.S. Supreme Court agrees with Koster and tosses out the mandate, Connor said he can rightly tell Democrats that his legal argument was correct. But if the Supreme Court rules in favor of the mandate, Connor predicted that Koster might get a Democratic challenger as a result.

"It is possible that he can have his political cake, and eat it too," Connor concluded. "But he is taking a chance."

Jo Mannies has been covering Missouri politics and government for almost four decades, much of that time as a reporter and columnist at the St. Louis Post-Dispatch. She was the first woman to cover St. Louis City Hall, was the newspaper’s second woman sportswriter in its history, and spent four years in the Post-Dispatch Washington Bureau. She joined the St. Louis Beacon in 2009. She has won several local, regional and national awards, and has covered every president since Jimmy Carter. She scared fellow first-graders in the late 1950s when she showed them how close Alaska was to Russia and met Richard M. Nixon when she was in high school. She graduated from Valparaiso University in northwest Indiana, and was the daughter of a high school basketball coach. She is married and has two grown children, both lawyers. She’s a history and movie buff, cultivates a massive flower garden, and bakes banana bread regularly for her colleagues.

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