State Attorneys General Say Health Reform Plan Unconstitutional

By Peter Roff, Thomas Jefferson Street blog

South Carolina Attorney General Henry McMaster, a former U.S. attorney who hopes to be the Palmetto State's next governor, has an appointment with destiny.

Following the passage of the Senate version of a healthcare bill, McMaster put together a bipartisan coalition consisting of more than a dozen state attorneys general to fight the bill, arguing that a political payoff intended to win the support of Nebraska Sen. Ben Nelson included in the final Senate bill may provide sufficient reason for a federal judge to declare the whole thing unconstitutional.

The provision that has McMaster and his colleagues up in arms affords special treatment to Nebraska, unique among all the states, as it pertains to the federal Medicaid program. "It has been reported," McMaster and the others said in a letter to Senate Majority Leader Harry Reid and House Speaker Nancy Pelosi, that Nelson's vote in favor of the Senate's version of the bill "was secured only after striking a deal that the federal government would bear the cost of newly eligible Nebraska Medicaid enrollees."

"In marked contrast all other states would not be similarly treated, and instead would be required to allocate substantial sums, potentially totaling billions of dollars, to accommodate H.R. 3590's new Medicaid mandates. In addition to violating the most basic and universally held notions of what is fair and just, we also believe this provision of H.R. 3590 is inconsistent with protections afforded by the United States Constitution against arbitrary legislation."

In short, he explained at a meeting Wednesday with Washington-based reporters and bloggers, forcing the taxpayers in the other 49 states to bear the costs of new Medicaid enrollees in Nebraska and only Nebraska may be unconstitutional.

McMaster explained the trigger for the attorneys general's threatened legal action was the fact that, despite the way financial inducements are sometimes used to win support for legislation in the House and Senate, the special provision was included for Nebraska--something he calls "The Cornhusker Kickback"--without even the pretense that it was about anything other than the need to win Nelson's support for cloture so that the Senate could move ahead and pass the bill.

"This is a national plan," McMaster says of the healthcare bill. "The special exemption given the state of Nebraska inures to no one's benefit other than Nebraska's. There is nothing in the constitutional cases to say that Congress can engage in spending in 'an arbitrary and capricious manner' " as it is attempting to do in this case.

Some legal analysts have claimed efforts to mount a constitutional challenge to the healthcare bill are without merit, that there is nothing in the Constitution that expressly requires Congress to be even-handed in its allocation of money among the states. McMaster rejects that notion, saying that there is at least one and in fact there may be several constitutional principles at stake, including one concerning the mandate that every individual purchase health insurance or be subject to fines and other penalties.

Congress, he says, does have the power to tax, to spend, and to regulate interstate commerce--but that an individual insurance mandate would be quite different. "There is no place in the Constitution that gives Congress the power to require an individual to buy something they might not want to buy." Others have argued the 10th Amendment expressly prohibits a mandate such as the one currently contemplated.

McMaster did allow that a decision by the congressional leadership, which is currently engaged in closed-door meetings trying to iron out the differences between the House version of the legislation and the Senate's, could derail the attorneys general's threatened legal action by opting to expand the Nebraska provision to include other states or all of them, something Nelson himself has urged. And it is not at all certain, McMaster agreed, that a judicial ruling that strikes down the Cornhusker Kickback as unconstitutional would force the repeal of the entire bill. Nonetheless, it is highly likely that the healthcare legislation, should it pass Congress and be signed into law by President Barack Obama, will have to demonstrate it passes constitutional muster before it can be enforced. 

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