The lawsuit against the health care overhaul filed Tuesday by Florida Attorney General Bill McCollum is focused on a provision that has long been advocated by conservatives, big business and the insurance industry.
The lawsuit by McCollum, a candidate for governor, and 12 other attorneys general, focuses on the provision that virtually all Americans will need to have health insurance by 2014 or face penalties.
The lawsuit calls this an "unprecedented encroachment on the liberty of individuals." It states the Constitution doesn't authorize such a mandate, the proposed tax penalty is unlawful and is an "unprecedented encroachment on the sovereignty of the states."
"The truth is this is a Republican idea," said Linda Quick, president of the South Florida Hospital and Healthcare Association. She said she first heard the concept of the "individual mandate" in a Miami speech in the early 1990s by Sen. John McCain, a conservative Republican from Arizona, to counter the "Hillarycare" the Clintons were proposing.
McCain did not embrace the concept during his 2008 election campaign, but other leading Republicans did, including Tommy Thompson, secretary of Health and Human Services under President George W. Bush.
Seeking to deradicalize the idea during a symposium in Orlando in September 2008, Thompson said, "Just like people are required to have car insurance, they could be required to have health insurance."
Among the other Republicans who had embraced the idea was Mitt Romney, who as governor of Massachusetts crafted a huge reform by requiring almost all citizens to have coverage.
"Some of my libertarian friends balk at what looks like an individual mandate," Romney wrote in The Wall Street Journal in 2006. "But remember, someone has to pay for the health care that must, by law, be provided: Either the individual pays or the taxpayers pay. A free ride on government is not libertarian."
Romney was referring to the federal law that requires everyone to be treated in emergency rooms, regardless of their ability to pay.
During his presidential election campaign, Barack Obama was opposed to an individual mandate, preferring instead strong requirements that employers be required to provide coverage. "I'm not sure how ready the country is politically to accept the overall mandate," Irwin Redlener, a Columbia University physician and adviser to Obama, told The Miami Herald during the campaign.
Still, the concept was gathering a strong momentum. The Business Roundtable, an association of chief executives of America's largest companies, supported it in the summer of 2008, thinking it much better than a broad requirement to force businesses of all sizes to offer coverage — something that could increase business costs and make them less competitive.
Others joined the bandwagon, including the liberal Service Employees International Union and the Commonwealth Fund, a nonpartisan nonprofit that studies American healthcare problems.
In November 2008, just days after Obama's landslide victory, America's Health Insurance Plans, a trade group, made a stunning announcement, saying it favored universal coverage and supported a law that would stop insurers from rejecting applicants because of preexisting conditions.
"Universal coverage is within reach," the group said in a historic press release.
After being adamantly opposed to reform during the Clinton years, AHIP said it had changed its mind — based on one condition: Any reform plan had to require that all individuals have insurance or pay stiff penalties.
AHIP's reasoning was simple: Many of the uninsured are healthy and under age 35. They either have jobs that don't offer insurance or they didn't pay for insurance because they were certain they wouldn't get sick.
Having this group in an insurance pool spreads risk. Without an individual mandate requiring them to get insurance, Americans could wait until they got sick and then sign up for insurance — a trend that would mean only sick people would be paying premiums while running up huge bills. In this scenario, healthy people would have no need to buy insurance — a financially disastrous situation for insurance companies.
The Obama administration saw that the mandate was the only way to get a reform package passed and it became a foundation of the legislation, along with subsidies for those who couldn't afford coverage.
On Monday, the day after it was passed, McCollum was ready with a press release: "The healthcare reform legislation passed by the U.S. House of Representatives last night clearly violates the U.S. Constitution and infringes on each state's sovereignty."
He objected to Thompson's car insurance analogy because people could choose wether or not they wanted to drive a car, while people had no choice about buying health insurance under the reform act. What's more, car insurance was rightly a state requirement, not a federal one.
He was joined in the lawsuit by attorneys general from Alabama, Colorado, Idaho, Louisiana, Michigan, Nebraska, Pennsylvania, Washington, South Carolina, South Dakota, Texas and Utah and Washington.