Monday, September 13, 2010

Conservative Duo Tests Health Law

Whether President Barack Obama's health-care overhaul survives could depend on a yin-and-yang pair of conservative Washington, D.C., power lawyers who sued to stop it mere hours after the bill became law in March.

The lawsuit, filed in Florida by David Rivkin and Lee Casey, is one of a handful of challenges lodged against the law in recent months. Like Messrs. Rivkin and Casey's action, some of the suits argue that Congress doesn't have the Constitutional authority to require people to buy health insurance or face a fine, a key tenet of the legislation.

But largely because the Florida lawsuit was lodged on behalf of 20 state attorneys general, it has become the most closely watched case in the ongoing political battle overt the health-care overhaul.

"This is one of the most important Constitutional challenges in history," said Mr. Rivkin, who along with Blaine Winship, an assistant attorney general in Florida, is scheduled to defend the lawsuit in front of U.S. District Court Judge Roger Vinson.

The Constitution grants Congress certain powers, like the power to tax or to regulate commerce between the states. Messrs. Rivkin and Casey believe, however, that nothing in the Constitution gives Congress the power to require individuals to own health insurance. They worry that the health-care example could set a dangerous precedent. "This is well beyond health care," Mr. Rivkin said. "It's about a fundamental alteration of a key portion of constitutional architecture which would greatly impair individual liberty."

Legal experts are divided over the strength of their case, however, with many predicting it will sooner or later fail entirely. The Obama administration has lodged an early challenge to the suit, arguing that the Constitution's Commerce Clause gives Congress the power to pass the law. The government also argues that the states filing the suit don't have "standing." That is, they can't sue because the law has yet to harm them.

Walter Dellinger, who served as acting solicitor general under President Bill Clinton and now works in private practice in Washington, D.C., said the case should be dismissed for lack of standing. "David and Lee are very well-regarded lawyers, but they've brought better lawsuits."

Such criticism doesn't faze Messrs. Rivkin and Casey, both of whom work at Baker & Hostetler LLP in Washington, D.C. Mr. Rivkin said his clients have the right to challenge the law now for several reasons. For starters, said Mr. Rivkin, states have already had to spend money and commit resources to comply with the law.

But Mr. Rivkin sees a different harm suffered by the states. "The states' sovereign authority is being trammeled upon by the federal government."

Although a team, the two men, both 53 years old, are a study in contrasts. Mr. Rivkin, who emigrated from the former Soviet Union when he was 17 and still speaks with a slight accent, handles more of the work that demands an extroverted streak, like drumming up clients or doing television interviews.

Mr. Casey, who hails from Michigan, opts for the more solitary tasks, such as analysis and writing. "I'm the introvert," he said..

The pair met in 1987 as young Reagan Justice Department lawyers and quickly bonded through their shared conservative political views and fascination with the Constitution.

"Back then, we would go to Monticello and Montpelier a couple times a year," recalled Mr. Rivkin. "It was a quintessential Washington friendship. It revolved around ideas."

Both stayed in government through the George H.W. Bush administration, and in 1993, "after the political wheels turned," Mr. Rivkin lured Mr. Casey to the Washington office of the law firm Hunton & Williams LLP. In 2000, they decamped together to Baker & Hostetler, where their practice focuses largely on appellate litigation.

Mr. Casey says he and Mr. Rivkin work on together on cases "75 to 80 % of the time. They also frequently pair up to write op-ed pieces, which typically feature a politically conservative point of view.

Last year, the pair wrote a series of op-eds on the constitutionality of the health-care law in The Wall Street Journal that grabbed the attention of Florida attorney general Bill McCollum. According to Florida deputy Attorney General Joe Jacquot, the pieces sparked conversation throughout Mr. McCollum's office on "state sovereignty and the individual mandate"—the portion of the law that requires all individuals to purchase health insurance.

At the same time, Mr. McCollum knew that Mr. Rivkin was giving South Carolina's attorney general, Henry McMaster, advice on challenging the so-called "Cornhusker kickback." Under that arrangement, Nebraska Senator Ben Nelson agreed to support the health-care bill in exchange for individual benefits for Nebraska.

Ultimately, the "kickback" was dropped, but when it was settled that Florida would take the lead in the lawsuit, Mr. McCollum kept Mr. Rivkin on board.

On Tuesday, Judge Vinson is unlikely to rule on the government's motion. But he could give a sign which way he's leaning.

The pressure on Messrs. Rivkin and Casey is "intense," said Bradford Berenson, a former White House attorney in the George W. Bush administration. "Every move they make will be scrutinized."

By Ashby Jones,


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