Are politicians overstating Utah's role in health care case?
High court hearings • Yes, say politicians; but scholars say suit's outcome will have little to do with state's legislation.
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In the aftermath of the U.S. Supreme Court hearings on the constitutionality of federal health reform, several Utah politicians have sought to claim credit for helping get the case before the justices.

But legal scholars say the Beehive State's role was a minor one, and the outcome of the lawsuit will have little, if anything, to do with Utah's legislation.

Congressional candidate Carl Wimmer, a former state lawmaker, has been one of the chief proponents of the view that Utah's role in challenging the Patient Protection and Affordable Care Act was crucial.

Wimmer sponsored HB67, intended to allow Utah to opt out of federal reform.

"It's absolutely amazing that the bill we passed here in Utah was quoted by the federal judge and was actually quoted as stating that, because of our bill and because of Idaho's bill, we had standing [to challenge the law]," Wimmer said. "That's a very significant thing. … It was Utah and one other flyover state that helped carry the day in this lawsuit."

Others — including attorney general candidate John Swallow — have pointed to an opinion by federal Judge Roger Vinson in Florida that noted Utah's statute was among the reasons the case could proceed.

Swallow told voters last week that cases around the country were being thrown out, but Utah's challenge prevailed.

"The only reason we're in the Supreme Court today," Swallow said, "… is because we actually won at the lower-court level and we won at the court of appeals."

But Daniel Levin, who teaches constitutional law at the University of Utah, said Vinson also pointed to a law Idaho passed a week earlier and allowed nearly two dozen other states to participate in the lawsuit — whether or not they had passed laws challenging health reform.

"It's highly unlikely," Levin said, "that the court's finding was primarily dependent on Utah's statute."

Claiming Utah's law was crucial to the case would be garden-variety "puffery."

"However," Levin added, "any claim that Wimmer's bill was absolutely necessary for standing or the single most important precipitating event for such standing would be clearly untrue."

Stephen Vladeck, a law professor at American University in Washington, D.C., noted that the 11th U.S. Circuit Court of Appeals sidestepped the question of whether the states had standing to challenge the health care law because the private parties — both individual parties and the National Federation of Independent Business — did have standing to challenge the law.

Indeed, the appeals court called the question of whether the states had standing "purely academic."

The 4th U.S. Circuit Court of Appeals disagreed with Vinson's opinion, ruling the states cannot challenge the individual mandate because they aren't required to buy insurance.

But the notion of the states pre-empting federal law, Vladeck said, "rests on a fundamental — and alarming — misconception… that states have the power to nullify federal law."

"If the mandate is constitutional, it pre-empts [Utah's] HB67. If it's unconstitutional, HB67 is irrelevant," he said. "The state itself is not injured by the individual mandate because, to the extent it is constitutional, the state has no power to opt out of it."

Mike Bertelsen, a Utah attorney who spent 16 years working in Washington, D.C., said Vinson's decision was basically making the point that there were numerous reasons not to throw out the case because of the standing issue.

"Wimmer is certainly overstating the case," Bertelsen said, "and if this is a fundamental part of how he's campaigning, then there is certainly some substantial room to criticize that kind of a statement."

In an email to Republican delegates last week, Wimmer touted a statement from Sen. Mike Lee, R-Utah, heralding the importance of Utah's law.

"It is entirely possible, if not likely, that the entire (Obamacare) litigation would have foundered for lack of standing but for the bill introduced and passed under the leadership of Representative Carl Wimmer," Lee is quoted as saying.

The freshman senator said Thursday that he was quoted speaking off the cuff at a Wimmer event last year. He wishes he would have couched his comment differently and had been given an opportunity to clarify it before it was used in campaign material.

"If I were writing that statement today, what I would say is: It was helpful in establishing standing in the litigation brought by the states challenging the Affordable Care Act," Lee said. "If someone wants to quote me, people have the right, I suppose. … My preference if someone quotes me is they give me a chance to review it."

gehrke@sltrib.com

Twitter: @RobertGehrke