McCollum: Roberts, Kennedy Key to Striking Down Obamacare

Chief Justice John Roberts could be the key as to whether the individual mandate section of the Affordable Care Act is struck down, Bill McCollum, the man who filed the case to overturn the law, told Newsmax.TV in an exclusive interview.

Previously it had been thought that Justice Anthony Kennedy would be the all-important swing vote in the case, but Roberts’ line of questioning on Tuesday, shows he is approaching it with an open mind, said the former attorney general of Florida.

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“It’s not a slam dunk for the states at all,” McCollum said after spending the morning in the Supreme Court hearing. “Justice Kennedy and Justice Roberts are both still question marks.”

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He said at the end of the day, he expects them both to join the other three Republican-appointed justices, Antonin Scalia, Clarence Thomas and Samuel Alito in voting to strike down the individual mandate, but their questioning has put doubts in his head.

“It did not sound to me like they have made up their minds completely,” said McCollum, who decided not to stand for a second term as attorney general in 2010, but lost a primary in his bid to be the Republican gubernatorial nominee.

“They were the two who sounded the most like they were truly questioning both sides pretty equally and they were very concerned about some aspects of the states’ case and what happens in the insurance market, what happens in healthcare.

“There were questions that were eliciting answers that made it sound like they were sympathetic to the argument of the government on the point that healthcare is unique, that everybody has to participate in it, that if we don’t have the individual mandate, then we don’t get the insurance coverage.”

McCollum said he did not expect any of the four liberal justices – Elena Kagan, Ruth Bader Ginsburg, Sonia Sotomayor or Stephen Breyer – to vote against the constitutionality of the healthcare law. “I can’t rule it out completely but it certainly didn’t sound like that to me,” he said.

“In their questioning … they were making arguments trying to persuade, I suspect, Justice Kennedy and maybe Chief Justice Roberts to their position.

“They weren’t really asking questions, they were making statements,” he added.
McCollum said he was “very pleased” that the lawsuit he filed, and which was later joined by 25 other states, has made it all the way to the Supreme Court.

“I always hoped it would. I felt then, as I do today, very strongly that it’s unconstitutional to require somebody to buy a product or a service, in this case an insurance policy, under the name of the Interstate Commerce Clause.

“The Commerce Clause is not an elastic,” McCollum said. “We need to have bounds on it. If the Supreme Court opposes this, which it may, then in that case you are going to see the doors open to all kinds of other mischief by Congress.”

McCollum, a former 10-term U.S Congressman, said the individual mandate and the increased Medicaid costs that would fall on the states are very important issues in terms of the 10th Amendment.

“How far can the federal government go?” he asked. “I don’t think they can go this far and I don’t believe this court, at the end of the day, is going to let them go this far. Maybe that is just a hope on my part but I really believe they should come down on the side of the states on both these major questions.”

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The Medicaid issue, along with the question of whether any part of the law can stand if the individual mandate is shot down, are both to be argued before the court on Wednesday. McCollum said he believes the whole law has to go back before Congress if the justices find for the states on the mandate.

He said the states’ lawyer, Paul Clement, will argue that the Medicaid provisions and the individual mandates are “inextricably intertwined.”

“The whole thing is tied up in a ball of wax and it is very difficult … for the justices … to separate pieces of it out,” he said.

“I am not going to be happy until we get a Supreme Court opinion that confirms what I believe should be the constitutional rulings.”