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A Certain Appeal

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  • | 12:49 p.m. September 2, 2011
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Who. Florida Solicitor General Scott Makar
What. Makar oversees the state's civil appeals in state and federal appellate courts.
Impact. Makar's experience could be key to winning the ObamaCare case.

From his Ph.D. in economics to his depth of experience in appellate law, Florida Solicitor General Scott Makar was an ideal fit to help defend the state's case against the federal Patient Protection and Affordable Care Act, also known as ObamaCare.

Makar, who grew up in Holmes Beach in Manatee County, has had a distinguished career — last year he set the record for appearances before the U.S. Supreme Court by a solicitor general in a term with four oral arguments — yet he seems to be a relative unknown outside the most elite legal circles.

Sen. President-elect Don Gaetz, R-Niceville, and Sen. President Pro-tempore Mike Bennett, R-Bradenton, confessed to not knowing anything about Makar. “He's low key,” explains his brother. “You don't hear him toot his horn.”

Nonetheless, Makar is an instrumental part of the team that will defend Florida and 25 other states' so-far successful lawsuit against ObamaCare if the Supreme Court hears the case. Initiated in 2010 by former Florida Attorney General Bill McCollum, the states argue the Patient Protection and Affordability Healthcare Act exceeds the federal government's power. Because of conflicting opinions in the lower courts, the Supreme Court is expected to hear the case.

As solicitor general, Makar oversees civil appeals tied to the state's interest in all state and federal appellate courts, including the Supreme Court.

It's a place he's familiar with, for he's already made five oral arguments to the court, and assisted with preparing briefs in a sixth Supreme Court case (see sidebar).

Of those, one of the state's two victories — one he calls a tie, the other two losses — came in Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection, a property rights case.

In the case, beachfront property owners argued that the government's ownership claim on newly deposited sand at the water's edge after beach restoration constituted a taking of their land. In an 8-0 decision, the court sided with Makar's defense of the state's actions because of pre-existing state property law.

“I felt the most vindicated,” says Makar about his first Supreme Court case, which few expected the state to win.

When McCollum named him to the solicitor general post in 2007, he says he chose Makar for the role because of his deep understanding of the appellate process.

Makar says he is proud of the appointment because it was based on merit. “Politics didn't have anything to do with it at all,” says Makar. “[It was] one of those moments in your life when things come together.”

Attorney General Pam Bondi reappointed him this year, telling him: “I have a lot of people for this job, and you're the one I want,” Makar recalls.

Renewing arguments
Makar, a Republican, began his legal career with the large liberal law firm Holland & Knight in 1989 handling appellate, litigation and legislative matters out of the firm's Tallahassee and Jacksonville offices. He became a partner in 1996.

From late 2001 to until he became solicitor general, Makar served as chief of the appellate division and assistant general counsel for the consolidated city of Jacksonville.

In the federal health care law case, the states won in the North Florida U.S. District Court with Judge Roger Vinson ruling against the entire act. “The individual mandate is outside Congress' Commerce Clause power, and it cannot be otherwise authorized by an assertion of power under the Necessary and Proper Clause,” wrote Vinson. “It is not constitutional.”

On Aug. 12, the U.S. Circuit Court of Appeals in Atlanta agreed with the district court's decision in significant part by ruling against the individual mandate provisions of the act. But the appellate court overturned the part of Vinson's ruling that said the entire law is unconstitutional because the individual mandate could not be separated from other changes approved by Congress.

“I suspect that will be an issue that is presented and briefed [to the U.S. Supreme Court],” Makar says. “I'd be surprised if we didn't renew the severability argument,” he adds. “There's concerns about the whole clockwork when a central component is pulled out.”

The appeals court also sided with the Obama administration on the law's expansion of the Medicaid program, a ruling Makar says he expects will be argued again should the case advance to the Supreme Court. “That's a sleeper issue in the sense that it doesn't get the same level of attention, but its impact in terms of dollars is just enormous,” says Makar, noting that Medicaid has already grown to roughly 30% of the state's budget. “We're hopeful the court will allow that claim to move forward.”

Because the 4th U.S. Circuit Court of Appeals ruled in favor of the act earlier this year, there's a high degree of certainty that the case will go to the Supreme Court, probably next spring. The case is now in the hands of former U.S. Solicitor General Paul Clement, whom Makar calls “a rock star” and “one of the top Supreme Court litigators of our era.”

Says Makar: “It's one of those cases where they're bound to take it, and it makes more economic sense to have it heard sooner rather than later because of the huge economic consequence of the act.”

The only real questions are which appellate court the case will come from and when. “The timing is an important issue because you have other competing litigants trying to get on the court docket,” says Makar, who likes his chances for the case to come out of the Atlanta court. “We have all the issues and 26 states. There's something to be said for having 26 litigants in the suit.”

The making of Makar
As big a story as the ObamaCare and the Supreme Court cases are, the making of Makar is remarkable in its own right. From Carmel, N.Y., Makar's family moved to Holmes Beach in Manatee County in 1969, minus his father following his parents' divorce.

Makar's family formed the foundation of his lifelong values of education and hard work. His mother, Barbara Makar, taught elementary school students with learning disabilities and authored a series of successful phonics books. Now deceased, she raised the two boys with the help of her parents, who also moved to Anna Maria Island at the same time.

Makar's grandfather, a former high school science teacher and athletics coach, brought a measure of discipline to the two boys, says his older brother, Mike Makar. “[Scott] pretty much followed the rules,” he says. “If we didn't, we had to face my grandfather, then my mother, and my grandmother would take a shot, too.”

Even when it came to golf, the future lawyer stuck to the rulebook. “To my recollection he never took a gimme,” says Manatee High School friend and fellow golf team member, Phil Galvano, brother of former State Rep. Bill Galvano, R-Bradenton. “Scott would putt out every shot. They say you judge character by actions on a golf course — that would be a great testament to Scott, doing things the way they should be.”

Tall at an early age growing to 6 feet 3 inches, he became an accomplished golfer. That despite tournament officials questioning his age and earning the nickname “Sky King” for how high he hit his drives by teeing the ball up on a pencil before the advent of long tees. At 16, Makar came in second at the first Florida PGA Junior Championship shooting a 67 including a five-under par 31 on the front nine.

At Manatee High, Makar excelled in the classroom too, graduating in the top 4% of his class. He was a National Honor Society member and joined Mu Alpha Theta, a math honorary group.

“He kept to himself a lot, which is why he probably did so well,” says classmate Lisa Varano, who also grew up with Makar on Holmes Beach.

Makar also found inspiration in others, and knew early on what he was going to do academically and professionally, which included earning five degrees. “The degrees were just stepping stones,” says his brother. “I think he had it all mapped out.”

In 1976, Makar took the opportunity to go to Lakeland for “Government Day,” where he saw oral arguments before the judges of the 2nd District Court of Appeals. Makar says the experience influenced his decision to become a lawyer.

Just three years after graduating high school in 1977, Makar graduated magna cum laude from Mercer University, earning a bachelor's of science degree with a double major in mathematics and economics and minors in computer science and political science. He also played on Mercer's golf and tennis teams.

In 1982, Makar received his M.B.A. from the University of Florida as well as a master's of arts in economics. It was during that time that Makar's cultivated his passion for the classroom when he became a teaching assistant at the college. He taught finance and economics classes.

“I worked throughout most of my undergraduate and all of my graduate education,” writes Makar, “paying my way entirely through [the] University of Florida coming out with no debt.” That feat is more impressive considering after he earned his law degree in 1987, he came back to the business college and received his Ph.D. in economics in 1993.

UF law school Dean Emeritus Jon Mills notes that Makar founded the schools' Journal of Law and Public Policy, which lives on at the school.

A 'sizable asset'
As part of his duties as solicitor general, Makar also teaches second- and third-year law courses. He holds the Ervin Chair at the Florida State University College of Law, a duty that attracted Makar to the solicitor general position. His plan is to teach seven different courses in seven semesters.

Makar has also taught courses at Florida Coastal School of Law in Jacksonville, where his wife, former Olympic swimming gold medalist Nancy Hogshead-Makar, is an assistant law professor. The couple met at Holland & Knight and have a son and twin girls.

Makar's reputation as an attorney remains pristine, despite his duty to argue difficult cases.

Even in losing the high profile Graham v. Florida case, in which the court ruled that life imprisonment for non-homicide juvenile offenders is unconstitutional, Makar earned the respect of his opponent.

“When you're getting rapid-fire questions from the justices you could very easily lose your composure, and he doesn't,” says Bryan Gowdy, the Jacksonville attorney who won the case.

Although Makar won't be the one making the arguments, he and his legal team remain part of the team behind the ObamaCare case.

With his math, finance, economics and legal background, Makar perhaps recognizes as much as anyone what's at stake with the case.

“There's nothing worse to me than wasted dollars especially wasted tax dollars that are irretrievably lost,” he says. “I think everyone would agree that we have to get this resolved so we know what the economic game plan is for the country.”


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