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. .....

    what a couple of morons! typical republican Bulls*&t! here they go again with trying to obstruct! ...does anyone realize that most south carolina dems or liberals fear living there cuz if you're not a republican you're basically looked down upon or hated on? why don't they just bring back linch mobs in SC!

    March 19, 2010 03:30 pm at 3:30 pm |
  2. Dano

    I just looked at the likely tally of yes/no votes for the health care reform bill. It seems that the vast majority of no votes are from congressmen from southern states. You know, the ones who wanted to secede from the USA over slavery. I say if they try it again we just let them go!!

    March 19, 2010 03:31 pm at 3:31 pm |
  3. Sniffit

    I guess all those STATE mandates that we obtain car insurance and the like are unconstitutional too, eh GOPers? Retards. Every single one of you.

    "Looks like O-Blah-Blah is going to have to go up against the 5 Supreme Court Justices he derided in the SOTU address. Good luck with that, Barry... you really put your foot in your mouth with that one."

    So, "Fair is Fair," you finally said something I can agree with: the 5 conservative justices will certainly base their decision on politics before they EVER consider the law.

    March 19, 2010 03:32 pm at 3:32 pm |
  4. Henry Miller, Libertarian

    "I honestly do not understand the Republicans. Should the health care reform pass, people like myself actually has a fighting chance to get proper treatment. Why all these efforts to stall the one major reform this country needs?"

    Because you're defining "reform" as "make total strangers pay my medical bills." I'm sorry you apparently have medical problems for which you need treatment, but paying for them isn't my responsibility.

    "Are they not in office to look after the interest of the majority?"

    A majority of the people in this country don't support the current health care proposals. They might support one or more different proposals, but rejecting the current proposal is looking after the interest of the majority.

    March 19, 2010 03:32 pm at 3:32 pm |
  5. Mike

    Wake up people and stop believing the crap the Democrats feed you. People don't die because they don't have health insurance.
    It is a law that any hospital must treat any individual who comes into their emergency room irregardless of their ability to pay.
    They need to start working on bringing costs down which will allow the poor to buy insurance and that is all.
    They cannot mandate this. That is like trying to mandate good will. You just can't do it.
    If the Republicans would have figured this out when Bush was in the WH for eight years they wouldn't have had to struggle now to fight this BS legislation.
    They brought this on themselves and will pay for it in the end.

    March 19, 2010 03:33 pm at 3:33 pm |
  6. VernisRobertson

    These Republicans are going to far , what a bunch racist idiots. You file a lawsuit on Bush , when the country went to war in Iraq. Weapons of mass destruction.

    March 19, 2010 03:35 pm at 3:35 pm |
  7. JETT2

    Chris1.......My, my. When are you guys going to learn how to think for yourselves and stop repeating the same thing over and over and over again. Sound so ROBOTIC. But then, your whole party is Robotic isn't it? You all are just EVIL people and you know your party is headed to CRASH and BURN, so you just have to spew evil comments every chance you get don't you? You will be in my prayers tonight. God help you all.

    March 19, 2010 03:35 pm at 3:35 pm |
  8. Bob

    Someone said why do repubs hate america, they don't hate america they detest minorities namely Obama...(cause hes black ) Repubs want to keep america as it was 40-50 years ago...That whites keep all the money and power...

    March 19, 2010 03:35 pm at 3:35 pm |
  9. seebofubar

    AMAZING how can you all be so stupid? Do any of you have a 3rd grade education? This country has become so dumb and numb that you wouldn't even notice if Hitler took Obama's place. Although at this point it would be an improvement. You don't realize it but this bill will kill any chance for young people and minorities to have any chance to suceed in this would. You are making your own bed and unfortunatly you are going to have to sleep in it.

    March 19, 2010 03:36 pm at 3:36 pm |
  10. jimrytown

    Try this on. HRB requires, and rightly so, the sale of health insurance to be open to interstate commerce. It does not FORCE purchase of an interstate commerce policy. Therefore, if the SAGs wanna opt out of the requirement for their respective citizens to purchase insurance within their respective states, they could, concievably do so and still remain within the domain of the 10th amendment. However, with congress exercising control over Interstate commerce, the citizens of those states would still have the right to purchase policies from another state. Wanna bet how long it would take for the intra (not inter) state insurance guys to be all over those SAGs?

    March 19, 2010 03:36 pm at 3:36 pm |
  11. Marc

    Take a look at the Contitutions of other countries.
    Some of them have over 400 articles!
    USA has an article in the Constitution AND a SCOTUS ruling that says that the Constitution will never be able to identify each and every right and obligation of the states, counties, federal governments and individuals. Because it's not necessary.
    The USA Constitution recognize the necessity of having a clause that, while not numbering all rights/obligations, makes clear that said rights and obligations do exist and are protected by the Constitution.
    It's this or have a 400/500 articles constitution...

    March 19, 2010 03:36 pm at 3:36 pm |
  12. Mike

    Figures, the yokels that voted these guys in want to take up arms against the federal government so this isn't much of a suprise

    March 19, 2010 03:36 pm at 3:36 pm |
  13. Robert

    A load of nonsense...

    It is no more unconstitutional than forcing Americans to buy auto insurance – or to wear seatbelts, or to pay child support.

    These people are idiots.

    March 19, 2010 03:37 pm at 3:37 pm |
  14. Reese

    Do you people think this is some sort of joke? This isn't something you support just so you can continue to hate Republican values and ideals.
    This is something you support because you believe it will solve our health care issues. The fact is you don't have a clue how much this is going to affect you and your family. That is what is wrong with this bill! How much is this medical insurance going to cost a family? What will be covered? Any guess? Does the bill tell you how much or what is covered? No, and that is why it needs to be re-written, so we the people know exactly what the U.S.health care reform plan in this country details. Then WE can decide if we would even buy it.

    March 19, 2010 03:38 pm at 3:38 pm |
  15. Ken in NC

    WOW, Republicans are a prime example for abortion. People are claiming that the talks by the President is "BULLY TALK". Well dam. What would you call all the lies and talk by Republicans over the last two years? "Government taking over health care", "Death Panels", "Killing Granny", "Deem and pass is unconstitutional" and many other statements made by Republicans were not "BULLY TALK".

    I really like what Republicans say about "Deem and Pass" being unconstitutional. It didn't become unconstitutional until Democrats considered using it like Republicans have used it over 100 times. Republicans used "Deem and Pass" to pass Bush's last tax cut to the nations richest people that increased the deficit by 1.2 trillion dollars and they used it to pass the medicare prescription plan without funds to pay for it and allowed it to add over 400 billion dollars to the deficit so don't talk about the President is using "BULLY TALK".

    March 19, 2010 03:38 pm at 3:38 pm |
  16. Realist

    I can not believe we have some many constitutional experts in here. Makes me wonder how come we need the supreme court at all with these experts on the net. First it was goverment take over and than death panels and now its about the constitution.

    Amelioration, is a word republicans need to learn. Thats what Obama is trying to accomplis with this bill and it will succeed.

    March 19, 2010 03:39 pm at 3:39 pm |
  17. Sniffit

    States cannot violate the Constitution either, so everyone who believes this politicized misinterpretation of the Constitution should go out and cancel their car insurance as a protest of how unconstitution it is to force people to buy insurance...then drive 90 mph into a lamp post.

    March 19, 2010 03:39 pm at 3:39 pm |
  18. President Obama's "porkulus" package is bringing home the bacon!

    "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."

    Do you have a choice in whether you participate in SS or Medicare if you work?

    March 19, 2010 03:39 pm at 3:39 pm |
  19. CW

    There is nothing unconstitutional about deem and pass people. It's been around since the '30s. The only thing the constitution stipulates is that a vote in both chambers happens (and by the way, only a simple majority is needed) (that would be 51). The legislative body is allowed to makes it's own procedural rules, and these have been agreed on...like I said, since the '30s. Nobody is saying its pretty, but there is plenty of precedent. Further, this whole idea of you have to have 60 votes is ridiculous. It's only 60 to stop a fillibuster which by the way actually used to be a news worth event (like once or twice a decade). The only way around it is reconciliation (nuclear option) which just says screw you, we're moving to a straight up and down vote. It's how it has to be when you have an oposition that has fillibustered 80% of the bills that have come across in the last year...yeah, that's just ONE year.

    March 19, 2010 03:39 pm at 3:39 pm |
  20. T'SAH from Virginia

    This is the RepubliCAN'T's last effort to make the American people think they care – even though they know the LAWSUIT would not go anywhere!!!!! Just like COOCHYnelli and ronald McDonnell in my state – they are attempting to do the same thing!!!

    This is really getting good!!!

    March 19, 2010 03:41 pm at 3:41 pm |
  21. Uncle Ellsworthey

    @Hobart

    Repuplicans do not hate America. From all appearances it seems that maybe the democratic party as led by obama fills that bill for you. Seems pretty obvious by the changes they are trying to make in order to accomplish a redistribution of wealth. This is not and should not be a tenant of a democracy or a republic. It smacks of Europeanism, socialism and even communism and should be shunned.

    March 19, 2010 03:42 pm at 3:42 pm |
  22. Henry Miller, Libertarian

    "Ha – it' not more unconstitutional than medicare, medicaid, social security, veterans health care, and on and on. "

    I tend to agree–and hope that Tenth Amendment suits involving at least Medicare, Medicaid, Social Security are forthcoming. (Veterans' health care is a contractual obligation assumed by the Federal government as part of the compensation package for those who serve in the military. It's not a Constitutional issue.)

    March 19, 2010 03:45 pm at 3:45 pm |
  23. Sniffit

    "of course it's unconstitutional. this is why the liberals are trying to re-write american history in so many other ways."

    Yeah, the South really won the civil war and Jefferson and Madison's Federalist Papers were a communist manifesto. Idiot. Would you like to share your opinion on the constitutionality of the Bush regime's wire-tapping of the American public? Thought so.

    March 19, 2010 03:47 pm at 3:47 pm |
  24. Bob in Pa.

    This whole bill is unconstitutional. Congress has no power to do this at all. Pelosi and friends pretend that they do under the power to regulate interstate commerce. What they propose has nothing to do interstate commerce.

    March 19, 2010 03:47 pm at 3:47 pm |
  25. all4obama

    Perfect example of the type of Southern Fools I have to live amongst!!!
    The both of them are a couple of clowns!!!

    March 19, 2010 03:49 pm at 3:49 pm |
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