Health Care Lawsuit Frequently Asked Questions


Q: What is this lawsuit about?

A: Improving healthcare is too important to build on an unconstitutional foundation through a process that failed to respect states’ rights. This challenge is about ensuring that the federal government does not exceed its authority in certain provisions of the healthcare bill, and that the citizens of the State of South Dakota are given the respect that the Constitution requires. The Tenth Amendment states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” In addition, the Commerce Clause of the U.S. Constitution has never before been interpreted to expand Congress’ authority to require individuals to purchase a specific product such as health insurance or to face a penalty.

Q: What states have joined?

A: To date, 26 states have joined the Florida multi-state lawsuit: Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin and Wyoming. Virginia has filed a separate lawsuit and has indicated a desire to assist with the Florida case along with additional states through amicus curiae or “friend of the court” briefs.

Q:  What will it cost the state of South Dakota to join this lawsuit? 

A:  South Dakota’s share of the multi-state litigation agreement has been set not to exceed $1,000. South Dakota's share of the multi-state Appelate/ Supreme Court agreement has been set not to exceed $5,000. Accordingly we remain well within the initial $25,000 maximum reserve litigation budget.  This minimal cost to protect South Dakota’s right to govern and its citizens individual rights was deemed to be a responsible investment particularly in light of the $53.7 million projected increase to our South Dakota Medicaid Budget. Specifically, the estimated cost of the government expansion of healthcare accounting for only the expansion in Medicaid enrollment for 2010-2019 is projected at 53.7 Million to 62 Million; thereafter, it will be an annual $36 Million. This projection does not include inflationary increases, increased provider payments, additional administration costs, etc; it is only for the expansion in Medicaid enrollment. 

As a party to this multi-state suit, South Dakota is one of 26 states participating and sharing the litigation and appellate costs.  State Attorneys General typically use multi-state lawsuits to address important national issues or when more than one state has an interest in a legal matter.  As the lead state, the Florida Attorney General’s office will provide most of the resources and personnel to pursue the case, though the other participating states will be consulted.  

Q: Why did South Dakota’s join the challenge?

A: Attorney General Marty Jackley, former Governor M. Michael Rounds and Governor Dennis Daugaard have determined that joining the challenge was the right decision for South Dakota. The unfunded federal mandate in its current form will have a significant financial impact  to our state budget, and further expands federal government control and erodes our state’s rights. This lawsuit is further consistent with our South Dakota Legislature’s concurrent resolution opposing the government takeover of healthcare and encouraging preservation of states’ rights regarding healthcare regulation.

Q: What is this challenge NOT about?

A: This challenge is not about determining what healthcare reform should or should not entail. It is about whom should be making that decision for the people of South Dakota - our state legislature or congress? Furthermore, South Dakota has not joined this lawsuit for political reasons. This case raises constitutional questions about specific parts of the federal healthcare reform bill. It could just as easily be suggested that those in favor of the legislation are willing to ignore serious legal questions for their own political reasons. One important role of the Attorney General is to ask a court to intervene when there are important issues impacting the state’s legal interests and the interests of its people. Given our concerns about sections of this bill, we conclude that it would be in the state’s best interest to join the other states to resolve these legal questions now, so that we may repair our healthcare system in a way that does not conflict with the United States Constitution.

Q: What has the Federal District Court Ordered?

A: On January 31, 2011, the Federal District Court in Florida has granted summary judgment to 26 states, including South Dakota, holding the "individual mandate" provisions of the federal Healthcare Act unconstitutional; and declared the remainder of the Act void because it was not severable. In its Order of Clarification of March 3, 2011, the District Court recognized that "such an unprecedented and potentially radical expansion of Congress' commerce power could only be authorized in the first instance by the Supreme Court, or possibly by a Constitutional amdendment." The District Court went on to advise, "I expressly declared that the entire Act was 'void' and even though I emphasized that ‘separate injunctive relief is not necessary’ only because it must be presumed that ‘the Executive Branch will adhere to the law as declared by the court,’ which means that ‘declaratory judgment is the functional equivalent of an injunction.’”  Accordingly, the Court expressed concern that the federal government has “indicated that they ‘do not interpret the Court’s order as requiring them to immediately cease [implementing and enforcing the Act]’” and “They have reportedly continued with full implementation of the Act.”  

Q: What is the current status of the lawsuit?

A: The United States Federal Circuit Court of Appeals issued an expedited Appeal Schedule. Legal briefing was concluded by May 25, 2011. Case was argued before the U.S. Supreme Court on March 26-28. A decision is anticipated in the summer 2012.