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. Dano

    I'll make a deal with those of you who don't want health care reform to pass: Let the federal government use my tax money to pay for health care for all, and your tax money to wage illegal wars, bail out wall street, and give tax cuts to the wealthiest people in America. Sound fair?

    March 19, 2010 03:12 pm at 3:12 pm |
  2. NYCitizen

    What about the "Cadillac" now called "Maserati" tax provision on health plans? Isn't that unconstitutional? Why tax an individual at all on the health plan they purchase? Now, a person is penalized for above poverty earnings capacity! What about the fine levied on individuals who do not purchase a health plan (with possible jail time)? Isn't that unconstitutoinal? What happened to Freedom of Choice?

    (And as an aside, what about the photograph of Barry Soetero attending Catholic school in Indonesia? He was registered as Barry Soetero. There's really something fishy about all of this. It doen't sit well and something is not quite right.)

    March 19, 2010 03:13 pm at 3:13 pm |
  3. The GOP hates America

    When will the GOP stop trying to keep healthcare from Americans? South Carolina has enough problems with its Governor "hiking the Appalachian trail" in Argentina with his mistress while nobody knows where he went and the Lt. Governor saying that kids who receive free lunch at school are the equivalent of animals. We don't need any more stupidity coming out of South Carolina.

    March 19, 2010 03:14 pm at 3:14 pm |
  4. Sadie

    Republicans are hell bent on trying to stop this bill, they don't care about the millions of uninsured Americans.......they don't want this President to have this bill pasted because it will be one of his accomplishments that he promised during his campaign and the GOP wants Obama to fail on all his Campaign Promises........I will never vote for any republican again as long as I live because of these GOP idiots in Washington and the rest of the GOP in my state.......as for all you that are telling the men and women in Washington to VOTE NO for this Health Care Bill or you will VOTE NO for them in their next election.......Well the other half of this country that wants this Health Care Bill are saying VOTE YES for Obama's Health Care Bill and we will be sure to vote for you again when you come up for your next election.........

    March 19, 2010 03:14 pm at 3:14 pm |
  5. Siara

    What's illegal– or at least despicable– is the ton of money the insurance and pharmaceutical companies are sinking into political legislation to continue monopolizing their cash cow, aging Americans. Our own pharmaceutical industries sell the same drugs cheaper to non Americans and then block legislation allowing us to by abroad. What a scam!

    March 19, 2010 03:15 pm at 3:15 pm |
  6. Greg

    Hmmm. How can I get my name to the public for free....I can insert my name in the current national debate. If I threaten to file a lawsuit, most people won't understand the incredulity of my position, and they'll think I'm brave and standing up for Main Street (of course most of Main Street, not those 30,000,000 people who don't have insurance, but they're poor and are probably Democrats anyway). Then people will give me money when it's reported that I'm running for governor. So the state pays for the lawsuit, which is, in effect, paying for my gubernatorial advertisement – - – and it's all legal! No one will ever figure it out!

    March 19, 2010 03:15 pm at 3:15 pm |
  7. An 8 year old ELEPHANT dung heap, does not transform into compost in 1!

    Time to put on the Captain Obvious cape for these two idiotic con AG's

    Both of you need to stop watching Fake the News, that way, you would know that the "cornhusker" deal is removed by the rules amendment!

    I think the term that represents the actions of these states rights advocates is called "Pi$$in' into the Wind"

    Hope that is folksy and redneck 'nuf for you to understand.

    March 19, 2010 03:16 pm at 3:16 pm |
  8. Homer

    You wanna file a lawsuit... be my guest!! What kinda lawsuits have been filed against those crooked insurance companies by either of these men? NONE! But, the second a new lawman steps into town to clean up the crime scene, the first thing these Dixie Dorks decide to do is fight the Union! Be my guest!! Your argument will be buried in the dirt, along with the shot up grey uniforms you still choose to tout! This is abolition of slavery to these corporate hounds at it's finest... and these po' boys don't like it. TOUGH! Funny how history tends to repeat itself.

    March 19, 2010 03:16 pm at 3:16 pm |
  9. Beasly3B

    Everyone has the opportunity to get health insurance. Get an education. Get a job that offers health care. Quit being lazy your entire life. Save for your retirement. If you don't do it yourself, you have no one else to blame but yourself.

    March 19, 2010 03:16 pm at 3:16 pm |
  10. Siara

    "Two state attorneys general ready to file lawsuit on health care" Read as "Two state attorneys paving the way to run for political office". Attention pharmaceutical & Insurance industries: campaign contributions will be accepted.

    March 19, 2010 03:17 pm at 3:17 pm |
  11. Nini

    Thank you, you are both heroes.

    Stop this shame.

    March 19, 2010 03:19 pm at 3:19 pm |
  12. Beasly3B

    The Bush administration did not lie about WMD. All of our leaders, even Clinton, Kerry, Kennedy, and Pelosi said they had weapons of mass destruction. Maybe they were all wrong. Maybe Hussein had the weapons moved before the war. No doubt thought, Hussein was paying off the bombers who were attacking Israel.

    March 19, 2010 03:19 pm at 3:19 pm |
  13. John

    Just another ridiculous lawsuit in a country full of them. There was no income tax when the constitution was written but we have an individual mandate on it now. Same goes with social security. Same goes with Medicare. Same goes with the required signup for the selective service. That is why congress passes laws!

    Ironically if they could possibly in some way get that part of the bill struct down it would be Republicans trying to obsolve personal responsibility and force all us who do pay for health insurance to pick up the tab for everyone else.

    March 19, 2010 03:19 pm at 3:19 pm |
  14. Brandi from Jacksonville, FL

    TO Attouney General McCollum:

    You, sir, are an IDIOT and I am embarrassed that I share the same state with you.

    This is such a watse of our state's resources. It's funny how Republicans have been stating over and over that they are not obsturctionists and yet, when this health care bill finally gains ground and has a good chance of passing, here comes the lawsuits. Very interestings.

    I feel that every goverment offical that opposes this bill in any way should be required to give all all the health care entitlements they receive as government employees, and try to get health insurance living paycheck to paycheck, like the rest of us..

    Let's see how well they do!

    March 19, 2010 03:19 pm at 3:19 pm |
  15. Jake

    The Republicans should live up to their acronym, GOP–Get Out of Politics. They'd lie to make a profit selling their own mothers.

    March 19, 2010 03:20 pm at 3:20 pm |
  16. Henry Miller, Libertarian

    Arguing the Tenth on the "individual mandate" provision is safe–it's almost certain to be easily shown to be unconstitutional.

    But the rest of it...?

    The "interstate commerce" clause of the Constitution, Article I, Section 8:

    "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

    has been abused for decades as an excuse by the feds for doing just about anything they want to do. I'd really love to see one of those abuses come before the Supreme Court, and maybe the health care welfare idiocy would be a good test.

    March 19, 2010 03:20 pm at 3:20 pm |
  17. DAR

    These attorneys are commiting a crime, it is Gross Negligence
    Gross negligence is defined as "conduct or a failure to act that is so reckless that it demonstrates a substantial lack of concern for whether an injury will result."

    March 19, 2010 03:20 pm at 3:20 pm |
  18. Brink

    South Carolina? Again? Better resupply Fort Sumter and find a new Uncle Billy Sherman.

    March 19, 2010 03:21 pm at 3:21 pm |
  19. get real

    There are many federal laws we all, regardless of home state, must obey. If making people either purchase insurance or pay a fine is illegal then Federal Child Support laws are illegal too. Heck, there's even a Federal Parent Locator Service where the feds track down people who refuse to pay child support. So, please don't tell me that the federal government can't make us buy/pay/do certain things based on what two republican district attorneys say!

    March 19, 2010 03:21 pm at 3:21 pm |
  20. Sherrie F. Oregon

    Explain to me again WHAT is illegal? I am STILL here for ALL people with birth defects, pre-existing conditions & disabilities!

    I'm infuriated! Yet here we are with OR Rep. Defazio now claiming to be "undecided" and just called his office letting him know! I reminded them that I am the one who not only was born with birth defects but was the one in our newspapers over 10 years ago who was fighting and raising awareness that I would lose everything.. most IMPORTANTLY my medical coverage once I became fully employeed! Needless to say nothing changed, I could not find healthcare ins with my "pre-existing conditions" and I could not afford risking such a loss with my conditions! See? I could have been working all this time and putting IN to our system and State instead of being forced to be just another person who is taking OUT! I WANT this changed and I want this changed NOW!!! Peter Defazio is fully aware of and KNOWS my story and HAS known of my story! SHAME ON YOU Rep. PETER DEFAZIO! Shame on all of you who have been imobilizing me and the rest of our citizen for OUR conditions and NOT our abilities still to this day! Stripping me of America's Dreams & Freedoms simply for what I wasn't born with is WRONG Mr. Legal jerks!

    GET THIS ATROCITY FIXED & DONE NOW!!!

    March 19, 2010 03:22 pm at 3:22 pm |
  21. Justin

    If this is the most unconstitution legislation they can remember, then they have short memories.

    How about the Patriot Act, a huge federal infringement on the rights of individual Americans, passed by a single vote at midnight in the House?

    The GOP doesn't give two hoots about individual freedom or states' rights. The Bush Administration proved that again and again.

    March 19, 2010 03:23 pm at 3:23 pm |
  22. Stacie

    from South Carolina...why am I not shocked??!

    March 19, 2010 03:23 pm at 3:23 pm |
  23. Chas in Iowa

    I'm very concerned about the provisions and language that was written into the bill to made the insurance manditory. I know a few times in my life this was not possible.
    But I do think the "public option" was let go way to easily if they want to justify making partisipation manditory.
    I have other concerns that have not addressed to this point.
    You pay into health insurance premiums your whole working life, you get ill, you cannot work, you loose the health insurance you have paid into your whole life. You are forced into a government program of health care once your resources are tapped out. What gripes me is the insurance companies know if you get sick enough you won't be able to pay to keep the policy in effect. So they pull down the big profits and once you do get sick you loose your insurance and the insurance companies walk away.

    March 19, 2010 03:23 pm at 3:23 pm |
  24. one of the few conservatives who watches cnn

    anyone supporting this bill has not read it. you are just blindling following obama. . . the revolution will start this November and the dems will be the politcial wilderness for years.

    i am getting sick and tired of fools on the left who chuck the racist term around to silence the opposition. were not listening anymore...

    March 19, 2010 03:24 pm at 3:24 pm |
  25. Henry Miller, Libertarian

    "Okay, explain Car Insurance then."

    Car insurance is a requirement made by individual states, effective within the individual states. It's not a federal requirement, and can't be–because it's against the Constitution.

    Read the Constitution, moron. If you can read, that is.

    March 19, 2010 03:24 pm at 3:24 pm |
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