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Originally published March 30, 2010 at 9:38 PM | Page modified March 31, 2010 at 8:51 AM

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UW panelists say lawsuits challenging health bill lack merit

The University of Washington billed it as a debate among distinguished law faculty over whether the new federal health-care law is constitutional...

Times higher education reporter

The University of Washington billed it as a debate among distinguished law faculty over whether the new federal health-care law is constitutional.

But while the four panelists at a packed event Tuesday may have differed on some of the finer points, they all agreed on the big question: They said the new law passes constitutional muster and that various lawsuits arguing the opposite — including the one joined last week by state Attorney General Rob McKenna — have little merit or chance of success.

Even John McKay, the former Republican U.S. attorney for Western Washington (who was forced out in 2006 under contentious circumstances) said that while he sympathized with some of the political issues in play, he thought the lawsuits lacked merit. In fact, he questioned the timing and thrust of the cases: "One way to say it is, that this has to be seen as a political exercise," he said.

Moderator Hugh Spitzer noted the lack of a vigorous dissenting voice.

"I will say that we tried very hard to get a professor who could come and who thinks this is flat-out unconstitutional," he said. "But there are relatively few of them, and they are in great demand."

Spitzer, an expert in state constitutional law and a UW affiliate professor, said afterward that organizers even considered setting up some kind of video conference to provide the counter perspective. But in the end, he said, the lack of professors taking that position spoke to the merits of the arguments. He said organizers did not invite McKenna because they wanted to stick with academicians.

Sitting on the panel alongside McKay, who these days teaches constitutional law at Seattle University, were UW professors Stewart Jay, Sallie Sanford and Kathryn Watts.

McKay explained the reasoning behind some of the arguments in the legal cases filed in Florida and Virginia — namely, that the federal government has overstepped its authority by forcing Americans to buy health insurance and that the federal government is illegally forcing states to be a part of the scheme.

Jay said that when it comes to the first argument, the federal government has "the power to tax and spend" and the ability to regulate interstate commerce — adding that health care, which makes up one-sixth of the economy, undoubtedly constitutes vital commerce. And he said that states aren't being forced into the scheme because they could opt out of accepting federal health dollars.

Sanford said that when some people don't have health insurance, it changes the cost for everyone else. She cited state estimates that people who pay for health insurance are coughing up about $1,000 a year to help cover those who rely on charity care or who don't pay their medical bills.

The panelists seemed to agree that if any of the cases make it to the U.S. Supreme Court, the justices would be hard-pressed to find the law unconstitutional, given some recent precedents they have set in other cases.

Yet anything is possible — and it all makes for a lively national debate.

McKay said it is an exciting time for anyone teaching constitutional law and that the confrontation over health care — including violence and threats of violence — raises the stakes for the nation.

Nick Perry: 206-515-5639 or nperry@seattletimes.com

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