THE CAPITAL, TALLAHASSEE, June 29, 2012
David Royse, The News Service of Florida
During his time as attorney general of Florida, Bill McCollum boosted the state's efforts to fight child predators and developed a law enforcement strategy to reduce gang violence.
But on the issue that would have set his legacy in the nation's legal history, McCollum came up just short this week when the U.S. Supreme Court narrowly rejected his argument that the nation's new health care law was unconstitutional.
Despite any successes he had in his time as attorney general and in a long career in Congress, "this will no doubt be the story," McCollum acknowledged in an interview this week.
"There are many things as attorney general I'm very proud of," said McCollum, now a partner at the D.C. law firm SNR Denton. "Obviously, people will remember this decision more."
McCollum filed the challenge to the new health care law the day the bill was signed into law in March of 2010, and was quickly joined in the lawsuit by several other attorneys general.
But he and lawyers in his office were looking closely at the health care law even as the bill was being drafted – though McCollum was most concerned at first only with the actual policy ramifications, including its cost to states.
"During the debate over this I knew this law was trouble for the states," said McCollum, who wrote members of Congress urging them not to pass it.
But the idea for suing to block it on constitutional grounds came, McCollum said, when he read an op-ed in the Wall Street Journal by constitutional lawyers David Rivkin and Lee Casey, who wrote in 2009 that they believed the law went beyond the powers granted to Congress.
McCollum assigned lawyers in his office to follow that line of thinking, and began talking to several other Republican attorneys general.
"We concluded on our own that this was something I wanted to do, that this was important," McCollum said. He later hired Rivkin and Casey to represent the state in the case. He says even as it was filed, he thought it likely would go all the way to the U.S. Supreme Court.
His initial public statements against the law were on cost to the states and to individuals, but he also argued publicly when announcing the lawsuit the issue that eventually would actually end up saving the law – he argued that it was essentially a tax, which is what the Supreme Court finally decided as well.
The Supreme Court said that type of taxing authority was within Congress' rights, but McCollum had posited in 2010 that Congress was going too far, and didn't have the power to tax people just for living in the country. It wasn't a tax related to any particular behavior – but rather to doing nothing, by not buying health insurance.
"It forces people to buy something, in the sense of buying a health care policy or pay a penalty, a tax or a fine that simply the Constitution does not allow Congress to do," McCollum said at the time.
McCollum drew some criticism in taking on the law – which was already wildly unpopular with Republicans – because he was running for governor, and some saw the move as trying to boost his chances. In November, McCollum would lose the Republican primary to now-Gov. Rick Scott.
McCollum said Thursday he obviously was disappointed in the ruling, but proud of the legal team that took on the law.
"It was a very good argument," McCollum said. "Four of the justices would have taken the whole law out. We'd be a lot better off as a country, Florida would be a lot better off, if we had."