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

Two state attorneys general ready to file lawsuit on health care

[cnn-photo-caption image= caption="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. norwalkpa

    that 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.
    wow stacey. that wasn't hateful at all! Nice Job! way to stick to the liberal hypocritic playbook.

    again. he didn't have a prayer if it wasn't for the white vote...period!

    March 19, 2010 04:54 pm at 4:54 pm |
  2. Sheri F., Oregon

    It's clear that Republican's are Greed-aholics who are harming ALL of us with their sickness & addiction! They are long over due to be involuntarilly committed to Reform; they are just too sick to realize it!

    March 19, 2010 04:55 pm at 4:55 pm |
  3. David

    This is another political game, they know that they do not have a legal leg to stand on. Many precidents have been set in this regard and this case will never go anywhere. For the "voting" demographic insurance rates will go down with this plan, as soon as the public sees this this these games are really going to backfire on the republicans.

    March 19, 2010 04:55 pm at 4:55 pm |
  4. LacrosseMom

    BTW: For those who think that these states can sue, its not about to happen. Florida, South Carolina, Idaho, etc., wont get their day in court. The Healthcare Bill IS legal AND Constitutional! These clowns can waste state money if they want...... but........ they will have no recourse!

    Funny. Notice its all "red states"?

    March 19, 2010 04:55 pm at 4:55 pm |
  5. Sue

    Just like the Obama/federal government CANNOT force you to buy a car from Obama Motors--–they CANNOT force you to buy health insurance---or anything else for that matter.

    Thank you South Carolina, Florida, Idaho, and Virginia---and the 35 other states that plan on getting on board with this as well.

    March 19, 2010 04:59 pm at 4:59 pm |
  6. Wisconsonite - Stop Smoking the Tea Bags!

    I can't wait to see them bring this before the US Supreme Court and get their butts kicked right to the curb!!!!! Then I can't wait to see them back-pedal while they try to explain the waste of tax-payer money for this grandstanding, bone-head move!!! I'm sure President Obama, who is by the way a CONSTITUTIONAL LAWYER AND PROFESSOR is going to try to pull something that is unconstitutional! Yeah right and pigs can fly to the moon, too!!!

    March 19, 2010 04:59 pm at 4:59 pm |
  7. mdm

    Izzy March 19th, 2010 2:58 pm ET

    "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."

    Look it up–Article 3...

    Federal law always supersedes state law and, since Congress determines what the law is to begin with by passing laws there is no way to seriously claim the proposal is against the law.

    Since the Founding Fathers foresaw the need for Congress to pass more laws after the drafting of the Constitution, they made sure there was that "elastic clause" in the original document. For over 200 years, invocation of that clause, a part of the Constitution, has been ruled to be Constitutional.

    Izzy – Article 3 establishes the judicial branch of gubmint.... just sayin'

    and to others using auto insurance as an example.... auto insurance is STATE law, not Federal..... and if you don't wnat to buy it, you don't have to.... state just won't issue a driver's license...

    March 19, 2010 04:59 pm at 4:59 pm |
  8. Pat F

    To The Other Michael in Houston: This is a country of laws, still, not a dictatorship of the Liberals. If a judge strikes it down, it's defeated, genious.

    Michigan's attorney general Mike Cox had been be drafting his Complaint, too.

    March 19, 2010 05:00 pm at 5:00 pm |
  9. The Unsub

    How can one not want Healthcare for human beings? Yet, you are OK with spending lives and 1 trillion dollars on the war in Iraq in which 1. we aren't any safer and 2. Soldiers died for nothing! This is senseless thinking.

    March 19, 2010 05:03 pm at 5:03 pm |
  10. throw the bums out

    And the the rest of us who are not so unjustly represented?

    March 19, 2010 05:05 pm at 5:05 pm |
  11. All the news that is fit to omit

    Nitwit rahm-tards, you have a leak in your basement, do you FIX the leak itself and make sure IT doesn't happen again using YOUR money or do you...

    Tear down the whole block and rebuild everything using other peoples money like a Democrat would?

    WE ALL want reform and the ability to fix the leaks and make sure the others with leaks are taken care of, BUT you don't reinvent the WHOLE STREET.

    You Owebama people probably don't get the "complex" word problem or basic math so I move on to the smart people who work for a living for help with this question here.

    Bueller, Bueller anyone?????

    March 19, 2010 05:06 pm at 5:06 pm |
  12. Marko

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

    March 19, 2010 05:07 pm at 5:07 pm |
  13. cjr

    let me get this straight = these two guys want to spend taxpayers dollars to defeat a bill that will benefit their constituents. I will be so glad when Monday comes and then we can really debate whether these idiots really graduated from law school and maybe ask that they provide their birth certificates.

    March 19, 2010 05:11 pm at 5:11 pm |
  14. Maude

    Usage: Spanish

    Derived from the name of the town Cuéllar in the Segovia province of Muslim Spain. Cuellar is derived from Arabic invasion of Spain.


    March 19, 2010 05:12 pm at 5:12 pm |
  15. Disenchanted Democrat

    Please do not support the Health Reform Law. Work towards tort reform and allowing insurance to be purchased across state lines. The Chinese already own enough of our country and we're headed toward implosion. Thank you for not being bullied by Pelosi and the President.

    March 19, 2010 05:13 pm at 5:13 pm |
  16. Hal

    I keep hearing this argument about how getting health care to our fellow Americans threatens our freedom or "our" hard earned money!! This is the United States of America that means all of us are in this together. The gluttonous right has brainwashed these people so that they put their green fee's and their DirecTV and their SUV over the state of the Union or their fellow countrymen.

    What they forget is that the insurance industry scams us out of a thousand times as much money each year as is lost to fraud in medicare. In addition and nobody tracks how much we pay for fraud in the insurance industry because they just pass along the costs to us.

    Finally it is a lot MORE EXPENSIVE if we wait for all the uninsured to show up at the hospital for catastrophic healthcare then if we pay for preventative care. Or maybe we should just listen to the dittzo-head bigots and let them die because their poor and that is the christian way.

    Once more the GOPes want to keep the money flowing to their buddies in the insurance industry!! And to do it they get a bunch of racist, undereducated "tea baggers" to put away their hoods and march in circles.

    March 19, 2010 05:16 pm at 5:16 pm |
  17. LG

    All this talk about not wanting to pay for other people's medical costs misses the obvious truth... YOU ALREADY ARE DOING THIS. Every time someone can't pay their emergency room or major medical bills, the rest of us pay via higher hospital costs.

    While not perfect, the proposed legislation gets almost everyone contributing via insurance payments.

    It's easy to say that medical care is not a right - until you read the news stories of someone turned away from the hospital because they can't pay. Then everyone will be lining up to pillory the institution. Are you really willing to accept the notion of people dying when care could have cured them?!!!!

    March 19, 2010 05:16 pm at 5:16 pm |
  18. Adalbert

    What do you expect? They are hartless republicans.

    March 19, 2010 05:16 pm at 5:16 pm |
  19. Julie

    Well if this law suit succeeds we'll just have to implement single payer. After all Medicare is constitutional because it is a tax and a government service. The Sixteenth Amendment gave the federal government great freedom to directly tax all sources of income and spend the revenues. Single payer would be Medicare for all and definitely constitutional.

    By the way auto insurance is beside the point in this constitutional argument. States require that auto insurance be bought, not the federal government. Also, no one has to buy auto insurance as long as they don't own a car.

    March 19, 2010 05:17 pm at 5:17 pm |
  20. hypocrites

    These same good Christian people do no mind sucking the U S Federal Budget Office dry when they lustfully accept their Medicare and SS benefits. These are two socialist programs courtsey of that monster of all monsters–the government. They and their spouses will suck the system 20 fold more than what they ever paid in– and in turn will deny health care to the same citizens who are supporting this program with their taxes.

    March 19, 2010 05:20 pm at 5:20 pm |
  21. Felly

    Can we sue George Bush for going to war with Iraq under the pretext of WMD?

    March 19, 2010 05:28 pm at 5:28 pm |
  22. Marie MD

    Oh my, Florida and that dumb down state of SC. Can we expect anything less from them?
    To those who are crying for legal solution where were you when the previous administration rammed not one but two wars down our throats. Where our calls were being monitored? When the shrub lied about the WMDs and made fun about it at a press party?
    I can go on and on, but I am sick of hearing from the righteous right nut jobs and the people they sent to Congress!

    March 19, 2010 05:31 pm at 5:31 pm |
  23. throw the bums out

    These two thrill seekers are just so in this for the notoriety. Not a word from these two titans of truth and justice during the worst eight years of their boy's reign. Now the Joans of arc have appeared and want to be the messiahs of the world. Go back to your desks and start earning the money that your state pays you for health care coverage.

    March 19, 2010 05:32 pm at 5:32 pm |
  24. Republicans are Repugnant Taliban

    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?

    March 19, 2010 05:34 pm at 5:34 pm |
  25. Anand

    This is a perhaps the only chance to go after the insurance, pharmaceutical, hospital and medical industry cartel, monopoly which has held this nation hostage since whenever. Perhaps even doctors are victims to this. Enough of breaking the back middle class' back again and again by this arrogant industry. Even if the bill is incomplete, take the first stab, because it's not the last straw on the camel's back, we need to heap bales of straw on thiscamel. Go Obama, stay on it,I have all the support you need.

    March 19, 2010 05:36 pm at 5:36 pm |
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