During a Senate Judiciary Committee hearing on the constitutionality of the Affordable Care Act, Sen. Mike Lee (R-UT) pressed the GOP’s argument that if Congress can force you to purchase health insurance, it can also compel citizens to eat broccoli or go to the gym or take part in some other activity. “Congress could assemble a panel of experts,” Lee began, “that say that if you eat four servings of green leafy vegetables every single day, you’re 50 percent less likely from heart disease, cancer, stroke and a whole host of other ailments, that’s going to cost the government more money. That’s a pretty tight nexus there.”

Walter Dellinger, former Solicitor General in the Clinton administration, disagreed suggesting that Lee’s hypothetical was used to attack Social Security and the minimum wage:

DELLINGER: This is a direct regulation of a commercial activity, not something that merely affects a commercial activity.

LEE: Okay, let’s change the hypothetical. Instead of having to eat them, you have to take the first $200 out of each month’s earnings and purchase the equivalent of fours servings of green leafy vegetables to eat each day. This all of the sudden is economic activity…

DELLINGER: This is a provision to buy something that you cannot be assured you will never use and cannot be assured you won’t transfer the costs to others. So I think it’s distinguishable. And secondly, the very form of that argument was used to attack the minimum wage and Social Security…If the issue was the constitutionality of the minimum wage law and it was 1937, you would be asking me, is it a regulation of commerce for Congress to have a minimum wage of $500,000 an hour. And that has never been a legitimate…that form of argument I think was used against Social Security, was used against Medicare and Congress in fact has never abused that. It has never set the retirement age at 35 as the opponents of Social Security said would be possible if you upheld a retriement plan for people over 65.

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The implications of Lee’s hypothetical are quite significant: he’s suggesting that Congress is unable or unwilling to make rational distinctions between sound policy (making sure everyone takes responsibility for their health care expenditures so that those costs aren’t passed on throughout the system) and unreasonable requirements (like requiring people to eat a certain vegetable or purchase it). If that’s true, then we’re all in some trouble. And if one were to take his logic further, I’m sure we can find all sorts of existing laws that if expanded, could potentially circumvent cherished liberties, but nobody is proposing going to those extremes — and for good reason.

Earlier this month, Arizona Governor Jan Brewer’s (R-AZ) elimination of organ transplants for Medicaid recipients and the resulting death of two Arizonans prompted a national outrage that eventually led her to restore funding for the program. Yesterday, Sen. Jon Kyl (R-AZ), the GOP’s number two leader in the Senate, defended Brewer’s draconian cuts and blamed them on the health care reform law signed last year by President Obama:

“Even more controversial and very sad, Arizona has stopped Medicaid funding for several kinds of transplant surgeries on October 1. This is a kind of rationing required by Obamacare. The state cannot afford the most expensive procedures therefore it has to cut them back all because they are prevented by law from dialing back the coverage of these adults without children. The one place they can cut is on transplants…there is no other option. Many of those who have been critics of the decision with respect to transplants have failed to tell the whole story. The Governor had to make that difficult decision, because the health care reform bill eliminated a key option she otherwise would have had to dial back the coverage to the level of other states.”

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As ThinkProgress has reported, Brewer did not have to cut funding for organ transplants, as Kyl claims — she was even presented with twenty-six alternative funding proposals by one Republican official. Brewer, and now Kyl, ignored these alternatives and argued that “the state only has so much money,” even though Brewer’s budget still managed to find funding for corporate tax cuts, algae research, a coliseum roof renovation, and “bridges for endangered squirrels.”

Although the Governor eventually restored funding for Medicaid transplants, she has now proposed to slash Medicaid for more than 280,000 Arizonans. A recent report from the Kaiser Family Foundation shows that this year Arizona was one of only two states to reduce health service for low-income families and the only state to cut health insurance for children. Brewer’s cuts were an outlier even among Republican governors, and were not, as Kyl claims, the result of provisions in the health care reform law.

In fact, the health care reform law provides states with almost 100% of the funding to expand their Medicaid program and grants matching funds to states that don’t reduce their Medicaid eligibility. While thirty-three Republican governors have asked for waivers from the federal government to cut Medicaid eligibility in order to close budget shortfalls, only Brewer has cut Medicaid so deeply and dramatically. Now, as the Senate debates repealing the Affordable Care Act, Brewer’s deeply unpopular, draconian healthcare policies have won the support of one of the Senate’s most influential Republicans.

– Kevin Donohoe

Rep. Anthony Weiner (D-NY) responded to Judge Roger Vinson’s ruling against the constitutionality of the Affordable Care Act by pointing out, “We know this: the public option is constitutional.” During today’s Senate Judiciary Committee hearing, former Reagan Solicitor General Charlies Fried agreed:

FRIED: As I recall, the great debate in the Senate was between this device and something called the public option. And the government option was described as being something akin to socialism and I think there is a bit of a point to that. But what is striking Senator is that I don’t think anybody in the world can argue that the government option or a single payer federal alternative would have been unconstitutional.

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Fried is no fan of the public option, but still finds it “odd that this attempt to keep it in the private market is now being attacked that way.” As Austin Frakt put it, the mandate may be the price for maintaining a “private” solution to the health care crisis.

But if one were to review the arc of GOP criticisms against the law, the opposition to the individual mandate — at least from Congressional Republicans — did not develop until after the public option had been effectively taken off the table. Recall that while Sen. Orrin Hatch (R-UT) and former Senators Judd Gregg (R-NH) and Bob Bennett (R-UT) all previously supported the requirement, Sen. Chuck Grassley (R-IA) — who played a key role in the bipartisan negotiations within the so-called gang of six — favored the requirement as late as August 2009.

Before that time, the crux of the opposition focused on the public option. As it stood on its last leg in the fall of 2009, Republicans developed a new allergy to requiring people to take responsibility for their eventual health care costs. So, the GOP may have created this conundrum and now they’re making the most of it.

While most of the 26 states party to the multi-state lawsuit against the Affordable Care Act are still implementing the measure, a select few are now telling reporters that they’ll be using Judge Roger Vinson’s ruling to stop enforcing the measure. Florida’s newly-minted Governor Rick Scott (R) — who ran an anti-health reform group before running for office — is leading the charge and states like Wisconsin and Idaho are not far behind:

Florida officials made their direction clear: We will not move forward to implement this law.

Insurance Commissioner Kevin McCarty on Tuesday gave back a $1 million federal grant awarded to the state to assist with reforms. The money would have paid for a system to provide information to consumers on the rates of large-group insurers.

And Florida Gov. Rick Scott said the state will wait until the U.S. Supreme Court weighs in on the case before it plans for pieces of the legislation that haven’t gone into effect.

“We are not going to spend a lot of time and money with regard to trying to get ready to implement it,” he said.

In the Florida-led lawsuit representing 26 states, U.S. District Judge Roger Vinson ruled Monday that the law’s provision requiring people to buy health insurance or face a tax penalty is unconstitutional. He ruled the so-called “individual mandate” unconstitutional, and had to strike the law down entirely.

The administration may be considering if it should apply for a stay of Vinson’s declaratory judgment (which did not include an injunction of the law) and has argued that it will continue to implement the measure. Vinson also found that of the 26 states that took part in the lawsuit just two — Utah and Idaho — had standing to challenge the law, meaning that the other 24 may be on shaky ground if they decide to end implementation.

The biggest challenges are two-fold: 1) states that refuse to comply with the law would presumably cede control to the federal government, which would have to come in an implement the measure and 2) they would likely have to send back the millions of dollars they’ve accepted in grants. Florida has already given up a $1 million, but has received approximately $45 million. Consider:

- NORTH BROWARD HOSPITAL DISTRICT: $2,892,397
- NORTH FLORIDA MEDICAL CENTERS, INC: $2,752,713
- Osceola County Health Department: $8,313,858
- TRENTON MEDICAL CENTER, INC: $497,053
- FLORIDA DEPARTMENT OF ELDER AFFAIRS: $784,309
- FLORIDA DEPARTMENT OF ELDER AFFAIRS: $599,190
- FLORIDA DEPARTMENT OF ELDER AFFAIRS: $515,013
- FL ST DEPT OF HLTH: $2,060,128
- FL ST DEPT OF HLTH: $623,403
- FL ST DEPT OF HLTH: $909,315
- FL ST DEPT OF HLTH: $400,000
- FL ST DEPT OF HLTH: $513,415
- PINELLAS COUNTY PUBLIC HEALTH UNIT: $4,850,000
- AGENCY FOR HEALTH CARE ADMINISTRATION: $2,990,438
- AGENCY FOR HEALTH CARE ADMINISTRATION: $1,000,000
- Florida Department of Financial Services: $1,000,000
- FL ST DEPT OF HLTH: $3,405,228
- Florida State University: $1,425,600
- MIAMI CHILDRENS HOSPITAL: $4,769,280
- MIAMI-DADE COMMUNITY COLLEGE, MEDICAL CENTER: $641,520
- UNIVERSITY OF FLORIDA: $1,920,000
- UNIVERSITY OF MIAMI: $704,000

That’s a lot of money to part with, and I suspect that if Scott is serious about sending any of this back, he’ll have to fight these constituents and the representatives whose districts they’re located in. After all, even Republicans who oppose the law are always willing to lobby the government for grant dollars.