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. Lead, Follow or Get Out of The Way

    These are attorneys that want to become the top politician in their states. Translation: They are LIARS to the 2nd power.

    March 19, 2010 02:28 pm at 2:28 pm |
  2. d

    I don't agree that it's the most egregiously unconstitutional legislation (though I can't speak for their memory...they likely have a case of GOP-related selective memory), but the mandate will almost certainly be ruled unconstitutional.

    March 19, 2010 02:29 pm at 2:29 pm |
  3. Dave

    May god have mercy on your sould if you ever find yourself in the same predicament as your constituents. For your comment: "This is the most egregious, unconstitutional legislation that we can remember" I hope and pray that you never have a pre-existing condition which prohibits you from getting insurance for you and your loved ones. How can one person be so cold-hearted?

    March 19, 2010 02:33 pm at 2:33 pm |
  4. Mike

    South Carolina, it figures. Why don't they just leave the United States? who needs them? They hate everything. (just like my ex-wife). That's why I left her!

    March 19, 2010 02:33 pm at 2:33 pm |
  5. Minnesota gal

    Oh my isn't that something.....this bill if it is passed as they say by deem AGAINST THE LAW!!!!! Goodness gracious Miss Molly. Since bush passed 15 bills this way...and the republicans have used it over 200 times in their terms, why do this idiots think they can now say it is unconstititional...I know I said it, they are idiots....but then when you are a republican you "'AIN'T"' very smart to begin with.

    Do these dumb bunnies think that all those 200 bills the republicans passed with deem and pass are STILL LISTED IN THE CONGRESSIONAL RECORDS....What fools these republicans be...

    March 19, 2010 02:34 pm at 2:34 pm |
  6. Elle in WA

    Of course these are "republican" attorney generals. Go ahead, spend taxpayer money to fight a worthless cause that helps no one. See if you get re-elected.

    March 19, 2010 02:34 pm at 2:34 pm |
  7. gtjohns

    if they feel so strongly about a gov't mandate for insurance then why haven't they filed suit over the gov't requiring proof of car ins.

    March 19, 2010 02:34 pm at 2:34 pm |
  8. Oregon calling

    So, does that mean that it is Unconstitutional for me to be REQUIRED to have Auto Insurance??Q?Q

    Peace 🙂

    March 19, 2010 02:34 pm at 2:34 pm |
  9. awaitingliberalizationbyCNN

    Thank God for these Attorney Genreals that these states and Attorney Generals recognize that the President and the Congress are violating the Constitution. Perhaps we can finally get on with the impeachment now.

    March 19, 2010 02:34 pm at 2:34 pm |
  10. Finally

    Yes we are a nation of laws, and not the unconstitutional ones Pelosi and Obama are trying to put in to play. They really need to start playing school house rock "I am a Bill" on Obama's teleprompters!

    March 19, 2010 02:37 pm at 2:37 pm |
  11. irwin

    It can't be legal to force people to buy a product, especially such a crummy one as health insurance. Nor can it be compared to auto insurance, as one can simply not drive. One has to kill themselves to avoid health insurance. Even with these subsidies, it would still costs hundreds a month.

    These politicians are something else, shovelling all that money in the coffers of Insurers and Big Pharma. What it should do is simply say your in the system and automatically take it out of paychecks, tax refunds, or whatever works.

    March 19, 2010 02:37 pm at 2:37 pm |
  12. jackson

    Well, what do you expect....the republicans weren't happy with the last presidential election and tried everything possible to change it....they weren't happy with the nomination of Sotomayor, and tried everything possible to block it, including trying their own version of "borking", even though they decried it when the Dems did it (the "it's wrong when you do it, but that won't stop us from doing it too" concept, so prevalent in the GOP)...they did everything they could in Minnesota to prevent the Dems from getting a fillibuster-proof congress...they have voted "no" en masse to bill after bill after bill....this is a very bitter group of people who are so upset that they lost power, that they continue to do anything and everything they can to block anything from happening. A year and a half in, and they are ***STILL**** nothing but "the party of no".

    What a sad time in America when an entire political party can behave no better than petulant children whining in their sandboxes.

    Just sad.

    March 19, 2010 02:37 pm at 2:37 pm |
  13. Wmscot

    Do you really think that the insurance companies are going to give up when this bill is passed ? They have these republican govs and attoney generals in the pocket just like the the congress. This will go to the supreme court and hopefully we will win this time unlike 2000.

    March 19, 2010 02:38 pm at 2:38 pm |
  14. carlos

    REPULSIVE...REPUGNANT and, to top it off CONServatives.....enough said of the scum gophers

    March 19, 2010 02:39 pm at 2:39 pm |
  15. all the news that's fit to omit

    Whether Owebama likes it or not, YOU CAN'T FORCE PEOPLE TO BUY A PRODUCT and this will go in front of the Supreme Court and those "smarter than Owebama" justices will shut his POWER PLAY DOWN.

    All the back room deals, the lies, the myths, the payouts and plane rides and with all the rahm-tards exposed for being AGAINST THE MAJORITY OF THE COUNTRY, we are going to pick you off one, two, three, four etc, etc at a time.

    The sound you hear Barry and Pelousy and Reid on Sunday WON'T be clapping, it will be an angry mob with pitchforks and torches.

    Have a nice day you gutless coward.

    March 19, 2010 02:39 pm at 2:39 pm |
  16. Thomas Hood

    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.

    I know you guys arn't really so good with the whole "editing" thing yet being only 20-odd years old but it's "attorneys general" not "attorney generals".

    March 19, 2010 02:40 pm at 2:40 pm |
  17. a health economist

    More spin by the Republicans. Yes, an individual mandate is unconstitutional. But this bill doesn't have an individual mandate. This bill will enact a tax on everyone, which is perfectly legal. However, if you own health insurance (group, private, etc.) you are exempt from this tax.

    They are using peoples' emotions against themselves. Educate yourself before bying into rhetoric. On both sides!

    March 19, 2010 02:41 pm at 2:41 pm |
  18. Brian

    The old interstate commerce charge. If the founders would have known it would be bastardized like it has been they would have ripped it out. This little clause is the way liberals justify government intrusion into every part of your daily life.

    March 19, 2010 02:41 pm at 2:41 pm |
  19. Bertina

    Attorney generals in states who file will have to file all the other cornhusker kickbacks that were in their own states before this. Otherwise, its meaningless.

    March 19, 2010 02:42 pm at 2:42 pm |
  20. General Sherman

    Go pound sand,you wont win but the lawyers will make a bundle.

    March 19, 2010 02:43 pm at 2:43 pm |
  21. The lonely Libertarian of Liverpool NY

    Hello, that is why the majority are against it. Health care is not a right. Will somebody please start listening to Dr. Ron Paul please?

    March 19, 2010 02:43 pm at 2:43 pm |
  22. Avg Guy in Red State Kansas

    Aw c'mon, guys! Jesus Murphy on a Honda!!! G-I-V-E I-T A R-E-ST!! Some people will do ANYTHING to torpedo universal health care.

    For cryin' out LOUD!! No piece of legislation is ever perfect when it comes out of the Congressional womb! That's why they call politics "the art of compromise"! Let's get SOMEthing done, then we can go back and fix it and make it better.

    There is absolutely no doubt in my mind – and, I suspect in the minds of many others in this country – that these two Bozos and our congressmen and senators don't live in the real world.

    These two imbeciles are just that: GOP imbeciles!

    And, as for Congress, what a bunch of TWERPS!!!

    March 19, 2010 02:44 pm at 2:44 pm |
  23. Susan

    I am a Independent voter and I am so sick of these Republicants! They are such sore losers and a bunch of racist. You didn't see them fighting Bush on all the mess he got us in. As for the Dems, they a bunch of cowards and need a back bone. They need to fight fire with fire and stop letting these lying Republicans get ahead of them!!

    March 19, 2010 02:44 pm at 2:44 pm |
  24. what a waste

    why didn't they file when car insurance was a mandatory?? How come the so called 'Educated' people act like an idiot...what is this world coming to...

    March 19, 2010 02:46 pm at 2:46 pm |
  25. gt

    if nancy and her thieves had done this right we would not have all this gargabe going on... what a disgrace,,,, ptiful...start over do it right america will go along but not with this way...

    March 19, 2010 02:46 pm at 2:46 pm |
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