Republican pizza mogul Mark Darr got elected lieutenant governor by vowing to rise in the state’s behalf against President Obama’s liberal doings, especially that health care business.
That was tall talk from a candidate for a ceremonial part-time office that exists only because the governor might become incapacitated for some reason.
Darr also faulted Dustin McDaniel, the state’s Democratic attorney general. That was for declining to join 20 or so other attorneys general, all but one Republicans, as plaintiffs in a lawsuit in Florida seeking to declare unconstitutional the provision in the new health care law that forces everyone to buy health insurance.
It’s called the individual mandate. Some people of a cursedly independent and conservative bent don’t like being told that their government is making them buy something.
Darr said he would file suit himself, for all of us, if he had to.
That was effective rhetoric. It is true that, if you want to get technical, Darr will be the highest-ranking Republican state officeholder next year and, as such, perhaps is obliged to champion the foul public mood that elected him.
Actually, I can easily envision this Florida lawsuit prevailing against the individual mandate, which might, or might not, gut health care reform altogether.
You need everyone participating in the system if you want to protect sick people from denial of coverage on account of pre-existing conditions. It’s not fair or reasonable to be allowed to go without health insurance until you suddenly need it from a pool you’ve been too irresponsible to pay into.
The Florida case inevitably will go to the U.S. Supreme Court, where it will be decided on an ideological divide. There are four conservatives who will vote to strike the mandate and four liberals who will vote to keep it. Then there is Anthony Kennedy, who will remain the most powerful man in the country.
The issue is whether the federal government can force every citizen to buy something. Your state government can force you to get car insurance, but only if you want the privilege of driving a car. This is a purchasing mandate on all Americans breathing.
So now Darr is in that familiar phase of trying to reconcile campaign bluster with practical reality.
McDaniel invited him to grab some friendly lawyers if he wanted and come to the attorney general’s office Friday afternoon for a sit-down. Darr arrived with state Rep.-elect Jeremy Hutchinson and Betty Dickey, former Supreme Court justice.
By all accounts the session was cordial and informative.
McDaniel told Darr he still had no intention of joining the suit in the state’s behalf. He explained that the issue was going to get litigated fully anyway without any cost to Arkansas. If the mandate gets declared unconstitutional, it will be every bit as dead in Arkansas as it would be if we piled on as a superfluous plaintiff.
But McDaniel wanted to assure Darr that his office was monitoring every legal development and would gladly keep the new lieutenant governor steadily updated.
McDaniel also told Darr that, though he was firm in his legal opinion that the mandate was legal, the candid truth was that the case could go the other way.
So Darr is left with two options:
One is to file a lawsuit himself here in Arkansas. Such a filing could well get thrown out instantly on the basis that Darr has no standing, either governmentally — since he’s not the state’s lawyer — or personally, since he has health insurance himself and would not be directly harmed by the federal government mandate that he go buy something he already has.
The second is to get out in front of the Republican parade in the forthcoming legislative session to pass a bill saying that no Arkansas resident could be forced to purchase health insurance. It would be a dubious state law, conflicting with federal law like that, but we’ve passed dubious state laws before and other states, Missouri and Virginia among them, have chosen that route.
Then McDaniel, as the state’s lawyer, would be obliged to defend such a law, presumably.
That assumes Gov. Mike Beebe would sign such a bill or, if vetoing it, get overridden. Beebe is too much a student of law and history to cotton much to the notion of a state’s defying the federal government. He is familiar with the Civil War, the Central High crisis, things like that.
All this drama would be meaningless, actually, because the real solution awaits conclusion in Anthony Kennedy’s brain.