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. Jim M

    So from all of you people ripping the bill, let me ge this straight:

    1. You are quite happy with the status quo, knowing that if you lose your job you could lose health insurance, or your current insurance could cap your claims
    2. You enjoy paying for the people who can not get insurance
    3. You obviously do not know what communism or socialism is.
    4. You are quite happy that we spent so much in unfunded tax cuts for the wealthy, unfunded wars and unfunded medicare drug benefits, yet a bill that saves money, you are against.

    Ok I understand.

    March 19, 2010 04:32 pm at 4:32 pm |
  2. The lonely Libertarian of Liverpool NY

    @ Henry Miller, Libertarian, your are the man! stay the course buddy.
    In Liberty!

    March 19, 2010 04:33 pm at 4:33 pm |
  3. GJ

    Sore losers alert

    March 19, 2010 04:33 pm at 4:33 pm |
  4. cnnsurfer

    Politics aside, I'm concerned about the broad sweeping statement that I keep seeing repeated: "Everyone knows Federal law always trumps State law...."

    This is not necessarily true. Yes, the Supremecy Clause does make the "Laws of the United States which shall be made in pursuance thereof" (pursuant to the US Constitution) "....supreme Law of the Land."

    Key language: made pursuant to the US Constitution. So if the Constitution does not provide the Congress the power to make laws and they do so....those laws do NOT trump State law. Couple that with the 10th amendment

    I know this is just High School political science material...but some people seem a bit rusty on their high school political science.....

    Oh and Izzy.....the Interstate Commerce Clause is not in Article III. Article III provides the judicial powers. The Interstate Commerce Clause is Article I, Section 8, clause 2. And it is that clause along with the Necessary and Proper clause (Article I, Section 8, Clause 18) that is one of Congress' most powerful tools.

    High school political science.....

    March 19, 2010 04:34 pm at 4:34 pm |
  5. jozne

    I think what the Attorney's are doing is the right thing. This whole health care ..... is not good for anyone. No where in the constitutuion does it say that the government has the right to run my health care. The behind the door deals are awful. Isn't Obama doing the same thing that the Governor of Illinois was doing? Making deals to get what he wanted. He was kicked out for doing what he did. How is it so different. I understand people don't have health insurance, so fix what is broke, don't overhaul the entire system. Most people who do have insurance are happy with what they have. I'm tired of the Government trying to micro manage our lives. It is not what the founding father's of our Country intended to happen. There needs to be less Federal Gov't and more free trade, and leave it to the states.

    March 19, 2010 04:34 pm at 4:34 pm |
  6. Jim M

    "seems simple...doesn't it? well...not until that corporation fires your liberal-butt! Ruined the country? My God you idiots will believe anything you're told."

    ---------------------------

    You mean Wall Street did not cause the banking crisis by over-leveraging themselves? The who did??

    March 19, 2010 04:35 pm at 4:35 pm |
  7. vito

    It seems like the only solution that Republicans can offer to any problem or issue is the cut taxes, yes just keep cutting and cutting taxes until there is no money for any service. Therefore we'll send all kids to private school, call private police, call a private fire department. When our roads need repair we can call a private contractor. Businesses will be free to do anything they want without regards to labor laws, environmental laws..... You get the message? We will have no public services only people fending for themselves.

    March 19, 2010 04:36 pm at 4:36 pm |
  8. jake

    hey rickster i had rather have a community organizer than a stupid space cowboy like boy george bush

    March 19, 2010 04:37 pm at 4:37 pm |
  9. Texas Jack

    yippee!!!

    March 19, 2010 04:37 pm at 4:37 pm |
  10. MarkF

    Leave it to CNN to use a headline to make not talking to the president as major news. I saw this guy with Rick and he said that he just wanted to have a clear head as he makes his decision. He

    March 19, 2010 04:37 pm at 4:37 pm |
  11. george from alaska

    there is no such thing as "states rights". that question was resolved via the civil war. you freakin idiot!

    March 19, 2010 04:38 pm at 4:38 pm |
  12. MarkF

    @Rickster

    You are a prime example of what's wrong with our educational system. Just dumb for no reason.

    March 19, 2010 04:39 pm at 4:39 pm |
  13. Jim M

    Terry –
    Just so we're all clear on this – Lincoln was a republican.... and many of those separatists were democrats.

    Don't tell me how all republicans are racists when the only member of the KKK in the senate is a democrat and a very powerful one at that.

    -Sid
    ----------------------------

    Sid, these Republicans are NOT the same ones as Lincoln or Teddy R.

    March 19, 2010 04:39 pm at 4:39 pm |
  14. ihatehippies

    It does not matter if the health-care reform bill does or does not pass. We cannot afford it and it will eventually be repealed or severely modified due to budget issues.

    Just look at places like California, New York or Detroit. The common thread between them is that Liberals have been in power in each for years. They are all victims of unrestrained liberal social spending. If any one of these entities could, they would declare bankruptcy.

    Do you want to know where the United States is headed? Just look at California, New York or Detroit.

    March 19, 2010 04:40 pm at 4:40 pm |
  15. Sue

    Sorry,,,,,,,,It is NOT just South Carolina and Florida..........It is Idaho and Virginia--and at "least" 35 other states as well that plan on doing this.

    And, in regard to Obama/federal government and supremacy---this does NOT apply here.

    The ONLy way that the federal government has supremacy-–is if it is something that is specifically addressed in the constitution that gives the federal government supremacy.

    And, Obamacare is NOT specifically addressed in the constitution.

    GO Florida, South Carolina, Idaho, Virginia---and every other state that gets on board with this!!!! You know for a fact that Texas, Arizona, Utah, Wyoming, and Montana will soon be next!!!!

    March 19, 2010 04:40 pm at 4:40 pm |
  16. Kristin

    NOW you republicans care about the constitution???????

    Do you not remeber Georgie Boy treating it like nothing more than a piece of toilet paper?

    March 19, 2010 04:42 pm at 4:42 pm |
  17. Ancient Texan

    I understand that 39 States are proposing laws to block this takeover of healthcare by this arrogant administration and congress. Power to the people. We can't afford this smelly package of garbage even if it were a reform of healthcare, which it ISN'T.

    March 19, 2010 04:44 pm at 4:44 pm |
  18. SC-Pub "no" more

    Go for it! Other than their salaries, I can not think of a bigger waste of tax payers money. But then S.C. and Florida are loaded.

    March 19, 2010 04:44 pm at 4:44 pm |
  19. Stacey

    that said....do you think the President had a prayer of being elected if it wasn't for white people?
    ______________________________________________________

    So what? Does that mean racism doesn't still exist? If you don't think so, then you are naive. Most white people did NOT vote for Obama. Look up the voting stats for the 2008 election. McCain got the majority. The GOP are a bunch of racist pigs and they make no bones about it. That's the reality.

    March 19, 2010 04:45 pm at 4:45 pm |
  20. Republicans are Repugnant Taliban

    When you allow insurance to be sold across state lines, and it is today because Blue Cross Blue Sheild does it all the time, it becomes interstate commerce. As laid out in the constitution it comes under Federal Mandate, in other words Federal law superceds state laws. Anyone in insurance knows that the Federal Government has had the right to intercede in insurance anytime they wished but have chosen to leave it to the states because of the mess it is to clean up. But that has ended because of the GREED of the insurance companies. So ALL YOU IDIOTS who point to the 9th and 10th amendment go screw yourselves. If you had a brain you would realize it comes under Federal Law and always has, so much for you intelligent and educated morons as you seem to feel you are. ALL insurance comes under Federal Jurisdiction, ask any lawyer that deal with Federal Law and really get educated for a change, and the reason is because IT IS INTERSTATE COMMERCE, Dumba$$e$.

    March 19, 2010 04:45 pm at 4:45 pm |
  21. sam

    Every state's attorneys should do this! Saying "the current health care system is broken" is a sorry excuse for accepting anything and everything that gets put into a bill as long as you like the TITLE.
    If it passes, you will face fines or jail time if you do not buy a Congress-approved health insurance plan. Your new plan has to have UNLIMITED lifetime insurance company payouts. You know that's going to cost you more. Your new plan also has to cover the cost of adding 18-26 year-olds to their parents' insurance plans. Insurance companies can't turn away people with pre-existing conditions so that means you have to pay extra to cover those costs–even without any pre-existing conditions yourself. Your new plan has to cover routine exams and tests with no copays–so those fees have to be added into your premium. This is not reform. This is a federal power grab.

    March 19, 2010 04:47 pm at 4:47 pm |
  22. Randolph Carter, I'm no expert but....

    We the People.... March 19th, 2010 4:12 pm ET

    "Good! I am glad they are doing this! I am tired of this administration trying to shove this bill down the throats of Americans when this will clearly only benefit 10% or less of the citizens of this country....."

    Kind of like the Bush tax cuts, huh? Have a nice day!

    March 19, 2010 04:49 pm at 4:49 pm |
  23. cnnsurfer

    Politics aside, I'm concerned about the broad sweeping statement that I keep seeing repeated: "Everyone knows Federal law always trumps State law...."

    This is not necessarily true. Yes, the Supremecy Clause does make the "Laws of the United States which shall be made in pursuance thereof" (pursuant to the US Constitution) "....supreme Law of the Land."

    Key language: made pursuant to the US Constitution. So if the Constitution does not provide the Congress the power to make laws and they do so....those laws do NOT trump State law. Couple that with the 10th amendment

    I know this is just High School political science material...but some people seem a bit rusty on their high school political science.....

    Oh and Izzy.....the Interstate Commerce Clause is not in Article III. Article III provides the judicial powers. The Interstate Commerce Clause is Article I, Section 8, clause 2. And it is that clause along with the Necessary and Proper clause (Article I, Section 8, Clause 18) that is one of Congress' most powerful tools.

    High school political science.....

    March 19, 2010 04:49 pm at 4:49 pm |
  24. Marc

    'Henry from NC – March 19th, 2010 4:03 pm ET
    READ the constitution – If the power isnt listed specifically in the constitution it is left to the states.'

    YOU read the Constitution man... Not ALL the RIGHTS of the FEDERAL government are listed (or the Constituion might up needing about 100/200 articles more...) therefore what is not expressly wrote in the Constitution might still be a federal power/right and might not, it depends on how it adequates itself to the 10th Ammendment.

    Henry Miller, Libertarian – March 19th, 2010 3:54 pm ET
    'In fact, Federal drug laws probably are unconstitutional.'
    Dude, are you high?
    A whole complex of laws and law enforcing agencies and budgets to supply the whole enofrcements of said laws and everything else...
    and they are unconstitutional (because of your way-too-restricted interpretation of the 10th Ammendment)?
    Then how come that no lawyer of any guy that was convicted for breaking said laws never ever challenged the constitutionality of them?
    Because FEDERAL laws always supersede STATE laws, it's a matter of hierarchy of laws. And let's not forget that SENATORS and REPRESENTATIVES (the guys and gals that create/discuss those laws) know very well that what they create applies to the WHOLE COUNTRY.

    March 19, 2010 04:50 pm at 4:50 pm |
  25. LeAnn

    So I guess we should just ignore all actions insurance companies have done that should have been illegal in the first place? Like I don't know, drop people because they got sick, or other various bogus reasons? Seriously..

    March 19, 2010 04:51 pm at 4:51 pm |
1 2 3 4 5 6 7 8 9 10 11 12