Utah’s Chief Deputy Attorney discusses healthcare reform lawsuit, land issues

Former Utah Attorney General John Swallow | Stock image, St. George News

ST. GEORGE – Utah’s Chief Deputy Attorney visited St. George to address county leaders from across the state on Thursday on public land issues. He also addressed local media concerning the state’s lawsuit against President Obama’s healthcare reform legislation.

John Swallow, the chief deputy attorney of Utah, spoke at the Utah Association of Counties 2011 conference on Nov. 17.

“I came … to talk on how the attorney general’s office and counties can work more closely together on important issues,” Swallow said.

Swallow cited the collaboration between the state and its counties when fighting against controversial Secretarial Order No. 3310, also known as the “wild lands order.” Order 3310 was announced by Secretary of the Interior Ken Salazar in Dec. 2010, and directed the Bureau of Land Management to designate new public lands that had “wild land characteristics.”

Utah – Uintah County in particular – was the first in the nation to challenge Order 3310 in March. The order was subsequently killed in June when Congress refused to fund it.

Current Land Issues

Swallow said one of the current fights between Utah and the federal government was over what he called R.S. 2477 roads.

Last week, Utah and two of its counties filed a quiet title action suit to have 710 segments of road classified as R.S. 2477 roads. These roads were originally created as a part of a 1866 mining act that gave states and counties right-of-way through federal lands. The original purpose of the roads was to allow access to mining and similar operations done on those lands.

The Federal Land Policy and Management Act of 1976 put an end to any future access roads, yet allowed the old roads to remain in use.

Swallow said the challenge Utah and its counties faced was getting the federal government to recognize pre-FLPMA roads, thus keeping right-of-way access through the public lands open.

“We could be locked out of these areas if the roads are lost,” Swallow said.

Swallow added he hoped the litigation concerning the roads did not drag on for too long, as witnesses who knew where the pre-1976 access roads were are getting older and have a habit of dying with advanced age. Without the witnesses, it would be harder to prove that the roads ever existed.

He said additional counties were in line to join the suit in coming weeks.

Healthcare Reform Lawsuit

“We’ve never been able to get anything done without filing a lawsuit against the federal government,” Swallow said. “It’s unfortunate; sad, but true.”

Utah was among the first batch of states to sue the federal government over the health insurance mandate placed in the president’s healthcare reform legislation. Utah now stands with 25 other states in a combined suit against the mandate that the Supreme Court has agreed to hear in March 2012.

“It’s the impossible dream,” Swallow said. “When you sue the federal government on a federal law in federal court, it’s nigh to impossible to get your issue to the Supreme Court.”

And reach the Supreme Court it has, and at a pace practically unheard of for cases heard before the nation’s highest court. Utah filed its lawsuit with 12 other states in March 2010.

“And here we are in November of 2011; a year-and-a-half after we filed, we get word the Supreme Court is taking it all the way,” Swallow said.

The lawsuit was like a very fast turtle, he noted.

“Not only that, they’re giving us five hours to argue [the lawsuit],” Swallow added. “Which is incredible; they never give that much time to an issue.”

The issue is question is the proverbial elephant-in-the-room for many states – the federal mandate for American citizens to buy health insurance or face being penalized.

“Well, we [the government] force people to buy auto insurance, right?” Swallow said, citing a metaphor used by both sides of the debate. “Well, no, we don’t.”

Swallow explained that driving was a privilege, and to enjoy that privilege a person was required to buy car insurance.

To be a living, breathing American was not a privilege however, but a right, he said. The insurance mandate would treat the simple fact of being alive as a privilege, with a requirement to buy health insurance, or face the consequences as a driver without auto insurance would.

Businesses world also be affected under the reform, as they would have to offer a minimum amount of healthcare coverage to employees. In some cases, business owners have already seen their insurance rates reach as high as 30 percent in preparation for a law that does not go into effect until 2014.

“It’s going to cost jobs,” Swallow said.

Businesses that do not comply with the new healthcare laws will be fined. Swallow said the federal government projects making as much as $60 billion annually from the collection of such fines.

It is $60 billion that could go toward creating profits and jobs that could help the national economy, he said.

“It’s bad on many fronts,” Swallowed continued. “It’s bad for the economy. It’s bad on the American dream and liberty, and what America stands for.”

He also said the healthcare reform laws undermine the concept of limited congressional power, and that such power is not bestowed upon the Congress as per the commerce clause of the Constitution.

Despite the potential challenges that healthcare reform may place before individuals, businesses, and states’ rights, Swallow said he was pleased had lawsuit has reached the steps of the Supreme Court.

“We stood up for states’ rights,” he said. “We stood up for the Constitution. And now we are going to reap the benefit of having the courage of our convictions to hold the federal government accountable, and that is what this is all about.”

mkessler@stgnews.com

Copyright 2011 St. George News. This material may not be published or rewritten without written consent.

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1 Comment

  • Gordon November 18, 2011 at 10:36 pm

    Driving a car is a privilege? Says who it is a privilege? I guess he means the government. Curious.

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