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. Dean O

    Time to stand up to Chavez and Castro like Policies. There's more Red States than Blue. Lets hop all the Red and a few blue join this suit or simply say NO. We wont force our citizens to comply. Without the State the Feds cant enforce didly.

    March 19, 2010 02:46 pm at 2:46 pm |
  2. brian in denver

    South Carolina & Florida, huh? Go figure.

    March 19, 2010 02:47 pm at 2:47 pm |
  3. Terry From West Texas

    Ah yes, the hallowed "states' rights" clause. Republicans have been using that old argument for many years. They used it to argue the legitimacy of secession in the Civil War. They used it to defend lynching in the South (not lynching but the right of individual states to tolerate lynching if they so chose – and they did). They used it to oppose Medicare (because it would require desegregation of hospitals). They used it to oppose the minimum wage law, workplace safety regulations, laws against sexual harassment, and laws affirming the rights of minorities to vote. They used it to argue against anti-pollution laws. They used it to support the "right to work" laws, which also include the right to work for crappy southern wages).

    Strangely, they did not mention states' rights when a Florida court ordered a recount of votes in selected Florida counties in 2000. Then, they urged the federal court to override and overrule local control. During the same election, Conservatives argued in New Mexico that the federal government had no right to interfere in local vote counting. When the city of Berkely passed a law forbidding ATM charges, Conservatives hurried to the federal courts arguing that only the federal government should be allowed to regulate banks. When certain counties in Wisconsin passed a minimum wage law that was higher than the state requirement, Conservatives argued that the state must not be "Balkanized" by a hodge-podge of differing standards.

    Conservatives no more believe in Constitutional principles than I believe in the tooth fairy. Conservatives have no shame. They feel no remorse for the damage they have done to this country for 150 years.

    March 19, 2010 02:47 pm at 2:47 pm |
  4. Term Limits

    Liberals argument that the GOP has down it before is not an excuse. Deeming a bill passed has been used, but on insignificant matters in the past. The fact is all are illegal and unconstitutional.

    Its like saying I always speed here and never get a ticket; you can't give me a ticket today.

    March 19, 2010 02:47 pm at 2:47 pm |
  5. Gifa Dembadu

    They can kiss my back side for all I care!

    March 19, 2010 02:48 pm at 2:48 pm |
  6. Tram

    Of course, they'd want to. They're republicans. They just want to hinder, not help. VOTE THESE PEOPLE OUT!

    March 19, 2010 02:48 pm at 2:48 pm |
  7. Bob Ramos

    Notice that they are Republicans and that both have excellent health coverage for themselves and their families.

    March 19, 2010 02:49 pm at 2:49 pm |
  8. GI Joe

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

    Just another stall tactic from the party of NO.

    March 19, 2010 02:49 pm at 2:49 pm |
  9. Stan

    Apparently you can have doo doo for brains and still be attorney general in South Carolina and Florida.

    March 19, 2010 02:50 pm at 2:50 pm |
  10. bess

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

    March 19, 2010 02:50 pm at 2:50 pm |
  11. Bryan

    If I live in one state and don't cross state lines how does the interstate commerce clause come into play?

    but who cares about the constitution anymore?

    March 19, 2010 02:50 pm at 2:50 pm |
  12. FL Voter

    Please. Career politician McCollum's ploy has everything to do with politics.

    Even though a fellow Republican called the "unconstitutional" nonsense "silly" and lacking substance, McCollum would still waste our taxpayer dollars (again) for narcissistic promotion while FL faces budget challenges.

    "Fiscal conservative" is once again proven a sad fallacy by McCollum.

    And not to forget, the mandate is actually a Republican idea, originated by Mark Pauly.

    March 19, 2010 02:51 pm at 2:51 pm |
  13. C.J.

    Can't say I don't agree. I don't want to be forced into buying anything. Where does it end?

    March 19, 2010 02:51 pm at 2:51 pm |
  14. Scott

    Ahem..."nothing to do with politics"? I don't know of a single GOP politician that hasn't taken a stance against this administration in an effort to ensure absolute failure for the administration. Every GOP Senator and Congressman has sided with "politics" since President Obama took office.

    For these two characters to say (during their gubernatorial campaigns) that this action has nothing to do with politics is hogwash. Where were they when Bush attempted to dismantle the constitution for his own purposes (actions within and outside of the Patriot Act), torture methods outrside of the Geneva Convention, and when he rammed Congress through a vote for war with Iraq and when the GSA assigned contracts without going through the bidding process, worth billions of dollars to Haliburton? These acts were not criminal or worthy of lawsuits or of these candidates attention?

    The one consistency with the GOP that the nation can always count on is their...hypocrisy!

    March 19, 2010 02:53 pm at 2:53 pm |
  15. Independant Thinker

    One problem with your argument, Boys.
    Can you say "Draft Registration?" That's called a Precedent in most courts.
    And how about all the Federal crimes that take precedent over States?

    Of course the Federal Government can do this.
    Stop spending your citizens tax money trying to "polish" your image of Conservatism. Seems counter productive to me.

    You want no Federal input when it comes to your citizens unless it means more Federal dollars coming your way. What a joke.

    March 19, 2010 02:53 pm at 2:53 pm |
  16. jay in denver

    Cool! Does this mean that the next time the U.S. illegally invades a sovereign nation tat my state can opt out of the war if we don't support it?

    March 19, 2010 02:54 pm at 2:54 pm |
  17. normajean

    The Republicans will stop at NOTHING to make sure that 30 million men,women and children have NO health care.They did NOT want to work with the Democrats ,rightly becoming the "Party Of No" and now are fighting tooth and nail to keep any plan from being accepted. Do the Republicans honestly think that the voters from this needy section of our society will ever vote again for a Republican? I know I won't and I've heard a lot of others agree with me.How can the leaders of this party sit back with their huge salaries and medical care without any consciousness of the lack of morality in their actions. These people are cold gutless wimps.Power and money are their gods .

    March 19, 2010 02:54 pm at 2:54 pm |
  18. Tyrone

    Of course its unconstitutional. Where does in say in the Constitution that citizens would be required to purchase health care and if you dont, you are going to jail or be fined.

    Are you serious? People should be up in arms about this.

    March 19, 2010 02:54 pm at 2:54 pm |
  19. SometimesElla

    So are they going to suggest removing the mandate that requires car owners to buy auto insurance?

    March 19, 2010 02:54 pm at 2:54 pm |
  20. G. Howard

    Finally, someone read all 2,000+ pages of the bill? I'm sure there are a lot of other little items in the bill that will come as a shock to all of us.

    March 19, 2010 02:55 pm at 2:55 pm |
  21. Johnson

    Maybe they should file lawsuit about having to pay a fine for not having car insurance. That violates my rights as an individual. While they are at it, they should outlaw having to wear seat belts, having safety inspections for cars, drunk driving laws, the right to harm another person and anything else that the government restricts. I'm tired of having to obey these laws. Why should I stop at a stop light? What gives the government the right to tell me when to stop and when to drive my car? What gives anyone the right to tell me that I can't go into a store and take stuff without paying for it?

    March 19, 2010 02:55 pm at 2:55 pm |
  22. Ed, Santa Fe, NM

    Why don't these turds try working FOR the good of the country.....

    March 19, 2010 02:56 pm at 2:56 pm |
  23. Confucuis

    All of a sudden these two unnotable titans of SC and Fla are sooo concerned about everyone's constitutional rights. I'll bet these two Spartans of 'justice' were sitting behind a desk and sucking off their sates' resources and now they are the saviors of the 'dumped upon'. Look for higher recognition in the future. Bye the Bye, what it the source of their medical coverage–Off the backs of the working stiffs .Hypocrites!!

    March 19, 2010 02:57 pm at 2:57 pm |
  24. mike

    Enough already, a democracy means the majority wins sometimes.
    Stop the republican bs, enough is enough!!!!

    March 19, 2010 02:57 pm at 2:57 pm |
  25. Misterational

    Hmmm. Shall we look at WHO is proposing to sue?

    The Attorney general from the obviously politically INSANE state of So. Carolina and the newly appointed Granstanding Grand poobah in favor of discrimination and contempt for the people's wishes from Virginia. These people are obviously making a stand for pure political positioning and grandstanding not to mention squandering the taxpayer's money form two states that are currently in economic distress.

    These guys are a disgrace to America.

    March 19, 2010 02:57 pm at 2:57 pm |
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