MO AG files amicus brief against ObamaCare

Ordinarily, news that a state had filed a court brief arguing to overturn ObamaCare wouldn’t rate much of  a mention.  Twenty-seven states have already filed lawsuits to overturn the law as unconstitutional on several grounds, and both suits have succeeded in federal district courts.  Adding Missouri, a red-to-purplish state anyway, would not be a big surprise — except for the man filing the brief:

Missouri’s Democratic attorney general broke with his party on Monday and urged a federal judge to invalidate the central provision of the new health care law.

The filing of the brief by Attorney General Chris Koster, a onetime Republican state legislator who switched to the Democratic Party in 2007, underscores the act’s political tenuousness in a critical Midwestern swing state.

Party affiliation appears to be something of a moveable feast for Koster.  He climbed on board the Democratic bandwagon after their victories in the 2006 midterm showed that they had political momentum in Missouri and nationwide.  With ObamaCare so unpopular in the state that a non-binding referendum against it attracted more votes than both 2010 Senate primaries combined while winning by a 3-1 margin, it’s not much of a surprise to see Koster try to ride the waves once more.

Koster declined to file a lawsuit or formally join the 26-state case currently being heard in Florida.  Instead, Koster filed an amicus brief in that case arguing with the other states to declare the entire law void.  Despite his current Democratic Party affiliation, the New York Times notes that Koster didn’t exactly “mince words”:

Though Mr. Koster has been slow to weigh in, he did not mince words, arguing in the court brief that Congress had overstepped its authority by mandating that individuals buy health insurance, which he called “a substantial blow to federalism and personal freedom.”

“If Congress can force activity under the Commerce Clause, then it could force individuals to receive vaccinations or annual checkups, undergo mammogram or prostate exams or maintain a specific body mass,” he wrote.

Interestingly, though, Koster argued that only the mandate should be stricken.  The judge in the 26-state case ruled to strike down the entire law.  Roger Vinson ruled that Congress deliberately omitted a severability clause in the legislation, which meant that having its central component ruled unconstitutional invalidates the whole program.  That’s different from Virginia’s separate case, where Judge Henry Hudson struck down the mandate but declared an implicit severability to ObamaCare that allowed the rest of the law to operate.

If Koster intended to support the plaintiff in a case by arguing that the mandate is severable, then it would make more sense for him to file that amicus brief in the 4th Circuit Court of Appeals, where Virginia’s lawsuit will be heard on appeal.  By filing his brief at the 11th Circuit, Koster may end up weakening the plaintiffs’ case by arguing for reimposition of the rest of the law, and one has to wonder whether that might not be a deliberate choice on his part.

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