March 19th, 2010
03:01 PM ET
5 years ago

Two state attorneys general ready to file lawsuit on health care

McMaster told CNN he will file a lawsuit quickly, if the bill is passed.
McMaster told CNN he will file a lawsuit quickly, if the bill is passed.

(CNN) - Should the Democrats' health care reform bill make it to President Obama's desk, at least two Republican state attorneys general are prepared to file a lawsuit challenging its constitutionality.

South Carolina Attorney General Henry McMaster told CNN he and Florida Attorney General Bill McCollum are ready to take issue with a controversial provision known as "the cornhusker kickback" that exempted the state of Nebraska from paying for Medicare costs and with another provision that mandates all Americans buy health insurance.

The provision giving special treatment to Nebraska was not included in the House bill unveiled Thursday but the legislation must be returned to the Senate before final passage. Democratic leaders have vowed that provision is dead but thirteen other attorney generals in addition to McMaster and McCollum have already signed on to the plan to file a lawsuit if the so-called "cornhusker kickback" is included in any final version of the bill signed by Obama.

But even if that controversial provision is removed, McMaster and McCollum say the bill's individual mandate provision is an unconstitutional encroachment on state authority as protected by the 10th Amendment - the part of the Constitution that provides all powers not explicitly granted to the federal government continue to remain with the states.

"The individual mandate is unconstitutional and a violation of state sovereignty and individual liberty," McMaster told CNN. "This is the most egregious, unconstitutional legislation that we can remember."

But proponents of the legislation maintain it is clearly constitutional under the federal government's constitutional power to regulate interstate commerce - a power the Supreme Court has long said provides Congress with wide discretion to pass legislation in areas not explicitly mentioned in the Constitution.

But McMaster says this bill is a clear departure from what the Supreme Court has said was permissible in the past because, instead of regulating a pre-existing purchase, the health care bill requires individuals to make a purchase of insurance coverage.

"If you choose to get into interstate commerce, the Congress can regulate it," he said. "But here, the difference is that this is requiring folks to get into interstate commerce by buying insurance. That's blatantly unconstitutional I believe."

While McMaster and McCollum are seeking their states' respective GOP gubernatorial nominations, McMaster says their lawsuit has nothing to do with politics.

"We are motivated by the law, according to the constitution," McMaster said.


Filed under: Bill McCollum • Health care • Henry McMaster • Popular Posts
soundoff (299 Responses)
  1. Republicans are Repugnant Taliban

    Even the activist judges on the Supreme Court cannot over turn what it states in the Constitution in plain back and white, to do so is to set themselves up to be impeached which yes can happen, they are not invincible and even Repugliban would have to vote to impeach any judge who went against the constitution because of what it would set in motion, you morons need to really get a life, if this law passes it is a done deal regardless of what Repugliban may be threatening, it is all empty hot air and worthless rhetoric so get used to it you moron Repugliban.

    March 19, 2010 05:40 pm at 5:40 pm |
  2. Dave Kennedy

    The Constitution is just a GD piece of paper – George W. Bush

    he said it – look it up yourself

    Reagan proved deficits don't matter – Dick Cheney

    he said it – look it up yourself

    But.. hey, now suddenly the constitution must be defended.. because instead of wiretapping our citizens.. we're trying to fix the health care system that's destroying the country.

    But.. hey, now suddenly we care about deficits – because even though the last admin created medicare D – which will cost nearly a trillion in 10 years.. 2 wars that weren't paid for – and tax cuts on the rich that cost us over a trillion – now all of a sudden they're concerned about debt..

    The exchanges are going to offer an 'invincible' package for those who are under 30 and want just a bare bones insurance policy.. so if you are one of those – there will be affordable options – the widening of the pool is just whats needed to bring costs down.. there isn't a public option – and that's too bad – thanks a lot to the obstructionists and misinformation from fox for that – but still.. this is a start that over time will work to restrain the costs. – but sure... fight what's best for us R's... you always do. – just look at the quotes above – look at what they are saying now... the republicans never have done a thing for us... they never will – they never have backed the constitution – except when it will do us harm.. they never worry about deficits – except when the money is spent on americans themselves instead of haliburton and the upper 1%.. but go ahead – file your lawsuits.

    March 19, 2010 05:41 pm at 5:41 pm |
  3. NVa Native

    So after eight years from 2000-2008 when the Republicans used the US Constintution as toilet paper, now that the Democratic Party is in the White House Repubs want to use the US Constitution as a shameless political prop. The Republican hypocracy and disdain for the working middle class is disgusting. How can they and Fox media fool so many (27%) into following them?

    March 19, 2010 05:45 pm at 5:45 pm |
  4. henriettap

    All the Republicans can do is say no,or kill the bill .Why did they not kill the bill for the WARS we are engaged in now.We owe everyone under the sun money for them because at one time all they knew was yes to spend and borrow.Their education level seems to be stuck at a pre school level.Where are their ideas they keep saying they have.All they are is a bag full OF CRAP.

    March 19, 2010 05:47 pm at 5:47 pm |
  5. Pragmatic

    Fascinating that the simpleminded people, with the loudest but most irrational rants are the same who think nasty word plays on the President's name adds depth to their nonsense. Nope!

    It would be interesting to use this forum as a quick -in the minute- poll. Seems with a casual count that the majority of people posting are in favor of passing this health care bill.

    March 19, 2010 05:50 pm at 5:50 pm |
  6. Kevin in Ohio

    This maneuvering is decisively unconstitutional. Let them pass the bill...and let the Supreme Court, the only branch of government with any sanity left, strike it down.

    March 19, 2010 05:51 pm at 5:51 pm |
  7. Republicans are Repugnant Taliban

    What do you people not understand about health care? If a person is ill and goes to the hospital they are REQUIRED to treat them, they CANNOT turn them away. If said people do not pay said health bills and have nothing then the hospitals cannot collect anything. Then they have still paid for the care so in order to cover costs they increase the cost to others who can pay, in other words those who have insurance. Insurance pays the higher bills and then turns around and raises insurance rates so in the end you are ALREADY paying for those who are not insured. So how does stopping this law keep you from having to pay for their health care? Some of you people, I do not know what you are smoking but it has to be some heavy stuff, sheeesh!

    March 19, 2010 05:56 pm at 5:56 pm |
  8. Winkzilla

    The eventual end result of the Republican agenda is nothing less than what we see at the Mexican borders. No government authority only leads to Mob chaos.

    March 19, 2010 05:57 pm at 5:57 pm |
  9. cnnsurfer

    Republicans are Repugnant Taliban March 19th, 2010 5:34 pm ET

    Federal Law superceds state law as seen in state legalizing Marijuana for medicinal purposes but the Federal Government can still arrest individuals regardless, Yes, if it is in an area mandated by the Constitution as under Federal Mandate Federal Law superceds state law, other wise states would be passing laws all the time to overturn Federal Laws they do not agree with. In this case of Health Insurance Reform Federal Law has the uper hand, in other words it superceds ANY state law to the contrary and States CANNOT pass laws to stop, intervene or overturn it, it is UNCONSTITUTIONAL to do so, I agree, you need to go back and restudy your high school government classes because you are way off base on this, Please go read the Constitution, it would help if you did so so we can have a more intelligent conversation, OK cnnsurfer?
    --------------------------------

    Ummm. Repugnant....you are the one off-base. I was hesitant to submit my post because I was afraid someone like you wouldn't be able to see that it really is just in the abstract. I did not provide any opinion as to the constitutionality of the Health Care Reform Act.

    I was merely troubled by the use of the broad phrase: If a federal law exists it ALWAYS trumps state law. I was merely pointing out that this is not true IF a federal law does not somehow fall within the powers granted by the constitution.

    By the way the only reason the federal government can make drug use illegal is because of the interstate commerce clause and the necessary and proper clause. States can still legalize drugs but of course that doesn't make one immune from federal prosecution under the federal laws. That doesn't mean that the federal law supercedes the state law only that they are just different. I understand that a state cannot overturn a CONSTITUTIONAL federal law.

    My only point was simply for a federal law to supercede state law it must be supported by some vested power in the constitution (e.g. interstate commerce clause etc...) and not every law passed by Congress has been constitutional.

    I withhold my opinion on the constitutionality of the Health Care Act

    March 19, 2010 06:01 pm at 6:01 pm |
  10. JB

    Whoever says (Lacrosse Mom) that veterans get excellent care is absolutely wrong! Obviously you are not a veteran and furthermore, have never been to a VA hospital. Substandard care that usually entails a monster wait! PLEASE!!!!!!!!!!!!!!!!!

    Furthermore, you obviously don't watch the news or you would have seen the scandals regarding veterans health care a couple of years back.

    March 19, 2010 06:03 pm at 6:03 pm |
  11. floridian

    All you people who are complaining about how much these possible lawsuits will cost - do you not understand how much it is going to cost you in the increases in fees, taxes, and anything else the states and/or federal government will use to raise money to pay for the increases in Medicaid costs, the costs not materialized by the "oops-we-did-not-save" $500 billion (that's billion) in Medicare costs, the increases in the cost of unemployment insurance as jobs go by the wayside. You think 9.7% is bad - just wait for when the benefits kick in (which happen to be after all the sheep have re-elected Obama to a second term) and then we find out what is really in the bill.

    March 19, 2010 06:04 pm at 6:04 pm |
  12. Republicans are Repugnant Taliban

    @Cnnsurfer Insurance is an interstate product, always has been, if the company selling it is in another state other than the one it is selling in it is an interstate transaction. Insurance is currently regulated by the states, but the Federal Governement has the right to oversee and legislate it, it always has, reason so many state insurance regulators try and watch what they do to keep the Feds from taking over the industry. As an insurance agent and one who taught insurance classes it is something you come to understand very quickly, states are and have been afraid if they allow things to get too out of hand then the Feds will take over. Your intent on posting what you did was an attempt to say that the Health Care Reform was unconstitutional even though you now try and back pedal your way out of it. It is NOT unconstitutional as you well know and understand so nice try on trying to save face but in this area you are out of touch and out of your league.

    March 19, 2010 06:07 pm at 6:07 pm |
  13. Republicans are Repugnant Taliban

    Also, if you are arrested for marijuana usage under state medical laws you can use the state law as a defense all you care to do so but the Federal Law still superceds it because to supercede a law is to make it unenforceable which the Federal law makes the state law. Supercede means the oen that takes precedenceover the other, perhaps what you truly need are High School English lessons, ys think?

    March 19, 2010 06:11 pm at 6:11 pm |
  14. Tom L.

    @Lacrosse Mom
    Ummmm, there is pending litigation in 37 states.

    March 19, 2010 06:24 pm at 6:24 pm |
  15. Republicans are Repugnant Taliban

    Two cases that show the constitutionality of the Federal Government legislating health insurance are Medicare and Medicare Supplemental insurance, both of which have been tested and found to be constituti0onal. First of all Medicare IS insurance and offered by the Federal Government. Medicare Supplemental Insurance is private insurance offered by private insurance companies to supplement Medicare and the Federal Government mandates what each form of supplemental insurance can offer in each format and what it cannot. All of this has been tested by the insurance comapnies on constitutionality and anything else they can throw at it and in each and every case has been overturned because the Federal Government has mandate over interstate commerce, end of discussion.

    March 19, 2010 06:28 pm at 6:28 pm |
  16. Jeff in Houston

    I wonder if they will just walk up the steps to the court or goose-step? Say, anyone remember where the book-burning is tonight? Never mind. I'll just look on my handy Republican web page.

    March 19, 2010 06:32 pm at 6:32 pm |
  17. David B

    I wish someone would go back and pull up past bills where the GOP used " Deem and Pass" and bills where other "sweetners" were added and call those representatives out by name. I find it so strange that while the GOP used the same process to pass their legislation, it was considered "constitutional", but when the other party exercises teh same right, all of a sudden it is a matter for the Supreme Court.

    March 19, 2010 06:41 pm at 6:41 pm |
  18. Brian from NJ

    If this thing passes I am going to officially stop trying to be successful... why should I work 60 hours a week to support everyone else when I can just quit and have the Democrats pass all these wonderful bills that say I won't have to pay for anything... I feel like a sucker for waiting so long to finally come to this conclusion... I'll sell everything I have, live in a shack by the beach and collect my "free" healthcare, my "free" unemploment or welfare, my "free" foodstamps... hmm what else do I need? Maybe I can ask my Representative to pass a bill and I can get a "free" car. After all, I really do think I am entitled to it... what time does Oprah come on anyhow?

    March 19, 2010 06:54 pm at 6:54 pm |
  19. ray

    remember people, this president is black and the racists on the right will never let him do anything right. the racists on the right dont want him to achieve anything. from day one they want this president to fail. the most ironic thing is that the republicans are brainwashing the rest of the racists on the right. americans are stupidest people on earth with all the p[ower they have and they are dumb and stupid. think for yourselves you morons.

    March 19, 2010 07:15 pm at 7:15 pm |
  20. Will from South Florida

    Now I live in Florida our state does not have money for our GA to go out and sue the US government. What makes it so hard for everyone in our country to have Health ins some of the poorest countries in this world have health ins for their people. Only reason you people are screaming and shouting because you know it going to pass this time. It sad to know that as Americans most of us don't care about other people but ourselves. Yet you guys did not say anything when Bush was breaking every law in the book. It sad to know there are people in this country who just hateful and should feel ashame who they are.

    March 19, 2010 07:26 pm at 7:26 pm |
  21. Luke Brown

    McMaster is running for governor and needs the headlines.

    March 19, 2010 07:37 pm at 7:37 pm |
  22. Dean

    Marko March 19th, 2010 5:07 pm ET

    It should pass. All of us should be ashamed we don't have healthcare for everyone.

    Everyone including illegal aliens receives healthcare in this country. A hospital cannot turn them away and if they can't pay they aren't charged.
    I am amazed at the stupidity and lack of knowledge shown in the posts here.

    March 19, 2010 07:40 pm at 7:40 pm |
  23. The Lady from Georgia

    where were you when they made it a law that you have to have auto insurance. I know I heard it before"it is a choice to drive a car", well it is not a choice to get sick but you still have to pay for it.

    March 19, 2010 07:52 pm at 7:52 pm |
  24. m smith

    repos are the scum of the earth. They don't have a bill yet they are ready to challenge it in court. Gee both from the south . Just a lot of partison noise. Even the AARP is saying this is nonsense and a Health care bill would help the elderly. Maybe the repo follwers will think this is important but the rest of us see it for what it is partisan obstructionism. Just a lot of chest pounding posturing for the looney followers who believe the lying party of NO

    March 19, 2010 08:01 pm at 8:01 pm |
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