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. all the news that's fit to omit

    Rahm-tards, YOU ARE NOT MANDATED TO DRIVE, and it is not a RIGHT.

    Funny how Stuffitt and DominicanMama are in on every board, who be paying fo you to post people?

    You certainly don't work for a living.

    March 19, 2010 03:49 pm at 3:49 pm |
  2. Jim

    The Decaration of Independence, that is the foundation of this country, stated " We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." For Companies, Government or a political party to deny health coverage that will result in death, as happens 45,000 times a year to people in this country, runs against the founding principles. This country was not created solely for people to make money at the expense of others. There are to many politicians and others who lie by aying they are prolife, when in fact, they are only pro money, greed and power.

    March 19, 2010 03:49 pm at 3:49 pm |
  3. Y. Harrell

    What does Bush have to do with the current situation? Please, will someone, state what program that has been run by the government is, or has, operated efficiently? It is bad enough that Social Security, Medicare and Medicate, the post office, etc. are all in financial trouble - what do you think it will be like when our healthcare is operated by an inept bureaucratic government that apparently cannot run their own business (illegal immigration for one, which is, by the way, a federal responsibility). The laws pertaining to immigration have been ignored by several administrations, both Democratic and Republican. Do you want an inept group of bureaucrats deciding if and when you get healthcare (especially if you are an old person)?

    March 19, 2010 03:49 pm at 3:49 pm |
  4. MsDp

    I bet the citizens of VA will be stupid enough and really go for these lies. Every one knows that Federal over-rides States; Further more, all of the so called gimmicks that the GOPers are crying about are not in the bill now. What other lies will they tell????

    March 19, 2010 03:50 pm at 3:50 pm |
  5. all the news that's fit to omit

    By the way Stuffitt, your HERO is continuing with many of Bush's policies INCLUDING WIRETAPPING or did you not see that on Oprah yet?


    March 19, 2010 03:50 pm at 3:50 pm |
  6. Jen

    Don't let up – make insurance, wall street, and corporations pay for the ruin of our country. Dems need to grow a pair, Repubs need to die off and take their tea party cheerleaders with them.

    People over corporations. Should be a no-brainer.

    March 19, 2010 03:51 pm at 3:51 pm |
  7. Carole

    RACISM is so pathetic in the USA. Unreal! They are so worried about a BLACK man doing for the people dying than anything.

    (Women, People of Color and Homosexuals BEWARE Republicans)

    March 19, 2010 03:51 pm at 3:51 pm |
  8. jm for sc

    Deem and Pass is the answer to the Republican's Filibuster Abuse.

    These attorneys knows this is legal, this is another effort to try to make people question ths bill. The Republicans has blocked so many federal programs that it is affecting things people have no clue about. They are just holding up progress for their own political gain.

    To Reese: The thing is, you don't know how the bill will affect you either because you opposition is based on Republican lies. Otherwise, unless you are a cold hearted rich person with excellencet insurance or the money to take care of any health issue money can buy, you would be supporting this bill.

    The Democrats who are against this bill have an attitude of "My way or no way." The Republicans are against this bill because they do not want the first black president to be the first one to begin the process of solving the healthcare problems in this country that presidents has been talking about for years.

    March 19, 2010 03:53 pm at 3:53 pm |
  9. jj123

    ..... March 19th, 2010 3:30 pm ET

    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!
    If the bill was any good, you dont need the republicians it would pass. The democrats are holding it up.

    March 19, 2010 03:54 pm at 3:54 pm |
  10. Henry Miller, Libertarian

    "Cocaine was legal in the USA, then it was made illegal.
    By 48 deifferent states laws (Hawaii and Alaska weren't states at the times) or by one single federal decision?
    Answer: the second option.
    Why? Because FEDERAL laws always supercede STATE laws."

    Absolutely untrue!

    Read the Bill of Rights, particularly the Ninth and Tenth Amendments.

    In fact, Federal drug laws probably are unconstitutional. When they prohibited alcohol in the 1920s ("Prohibition"), at least they did it the right way and amended the Constitution (the eighteenth amendment.) Drug prohibitions have no such Constitutional underpinnings. If it was a Constitutional necessity for alcohol in 1919, why isn't it for pot in 2010?

    March 19, 2010 03:54 pm at 3:54 pm |
  11. MT


    Its not a "right" to drive and license a car. Specific municipalities require that you provide proof of insurance before they will license your vehicle.


    Police Officers, FireFighters and hundreds of other specific State/Municipal Employees do not pay SS or Medicare under each individual states Section 218 filing which happened back in the early 1990's.

    Get an education! Stupid people are a waste of time

    March 19, 2010 03:55 pm at 3:55 pm |
  12. kd

    what part of 'federal law ALWAYS trumps state law' do these two idiots not understand??

    March 19, 2010 03:56 pm at 3:56 pm |
  13. norwalkpa

    its sick that it's gotten to the point where THIS healthcare reform is a good thing just because Obama says so. can barry give me one govt. ran entitlement that hasn't been totally screwed up and nearly bankrupt heck...they even take money out of social security to help pay for this outrage...AND THERE'S NO MONEY THERE! for Christ's sake...just ask any veteran what they think of their 'govt.' insurance.

    i swear. if this disaster we have in the white house told America to find the tallest building and jump...thousand os people would do it. that in its self would be social darwinism to me. not like this healthcre bill..which will end in cruelty for millions years down the road. november can't come soon enough.

    March 19, 2010 03:57 pm at 3:57 pm |
  14. Freeman

    I really enjoy the outpouring of anti-southern bigotry by commenters on this story that profess themselves to be enlightened and progressive. Keep up the good work.

    March 19, 2010 03:57 pm at 3:57 pm |
  15. Sniffit

    ""why didn't they file when car insurance was a mandatory??"

    1. Because driving is a privilidge, not a right. No one forces you to drive a car.
    2. Because most people have loans on their cars, and insurance protects the lienholder. Same as homeownere's insurance – required if you want to get a mortgage.
    3. Because even if you don't have a loan on your car, you may be responsible for damage to someon else's property – or life.

    Any other questions?"

    You're on a role today Fair is Fair:

    1. Your distinction only works if you're admitting that health care is a right, not a privilege. Are you? That driving is LESS of a necessity to individuals and the well-being of SOCIETY than health care is not a good argument for why you can be forced to buy auto insurance.
    2. Many people have life insurance. Many even buy it in lieu of health insurance because health insurance is far more expensive and they can't afford it. Health insurance protects the "lien holder."
    3. People without health insurance (by choice due to pverty or unsavory insurance industry practices) are partly responsible for the super-inflating costs of health care and health insurance, which is causing serious damage to the health care industry and American families...preventable deaths, rising premiums, bankruptcies, etc. Unless you GOPer/Teatard "I have mine, now screw you" people want to start a campaign to repeal EMTALA, you don't get to make your third argument. And btw, I hope you do try it...have fun trying to look like the good guys for trying to repeal EMTALA.

    March 19, 2010 03:57 pm at 3:57 pm |
  16. Rick in AZ

    South Carolina??? Who would've thunk it?

    March 19, 2010 03:58 pm at 3:58 pm |
  17. Anthony

    Reading the comments on the healthcare debate makes me realize how doomed this country is. Most of you people on both sides of this issue are idiots. It isn't that hard to see that the reason Obama has such an urgency about this bill has nothing to do with "Natomi," and has everything to do with the midterm elections. This is a crappy bill being forced down our throats through back room deals with swing vote congressmen. Most of you democrats seem to think the bill is addressing concerns that it doesn't address at all. This isn't a 'fix' for healthcare at all, it's an incredibly expensive political maneuver. You idiots need to stop swallowing everything Obama says wholesale. He is the consummate Chicago politician, lest you forget.

    I guarantee you if he were honest Obama would say that this bill is an awful bill. Six months ago he was arguing AGAINST a bill like this.

    March 19, 2010 03:58 pm at 3:58 pm |
  18. rachel

    Ummm all the silly people talking about car insurance its not the same thing. If you don't have a car the government can't make you Buy car insurance that's the difference. I for one and tired of the government's hands in my pocket. And nancy and reid have promised to add a couple things later that will add to the deficit but didnt want to put in now so they can just get it passed. This is why no one party should have complete control of congress and the presidency.

    March 19, 2010 03:58 pm at 3:58 pm |
  19. KJ

    Can anyone be surprised that is SC and Florida?

    March 19, 2010 04:00 pm at 4:00 pm |
  20. LacrosseMom


    There is a lot of "talk" on blogs about "Dim & Crass Rules" being unConstitutional or illegal.

    Here is a FACT:

    Speaker of the House, Dennis Hastert, Republican, used THIS VERY RULE........ 100........... yeah.........100 TIMES TO PASS BILLS!

    Its LEGAL.

    March 19, 2010 04:00 pm at 4:00 pm |
  21. Linda

    These are the same 'state' rights that some tried to use when southern schools were integrated and when civil rights were enacted. The 10th amendment has long been a tool of those who would deny American citizens their rights.

    March 19, 2010 04:02 pm at 4:02 pm |
  22. James

    All of you
    give me a break...
    Go live in another country like Canada, England, or Britian
    You are the ones that don't like our Country (America the Great)
    Little do you all know, you are all slaves
    slaves to the greed of money
    Slaves to Government, they take what they want and leave us with scraps....
    They are poised to kill the middle class (All Government, dems, repubs...) open your eyes a$$ holes.... They work together in the backrooms to continue to get rich... The problemn is our Government idiots, not a certain party.... They over spend, all of them you morons.... They create laws that control us little by little... Do you really think this last recession was not seen coming??? if you think so you are as stupid as the next person in congress and the senate.... They know what they are doing...

    "RETURN this Country Back to the Rightful Owners" and that means ??? Socialistic Governments that we fought to break from and form our Independance... Again if you don't like what OUr for fathers created for us... GO TO ANOTHER COUNTRY AND SEE HOW YOU LIKE IT

    March 19, 2010 04:03 pm at 4:03 pm |
  23. Henry from NC

    How in hades is protecting the constitution racism? That first statement totally kills what argument you have have.
    READ the constitution – If the power isnt listed specifically in the constitution it is left to the states.Thats why Mass. has their own plan. If you want it, you should be yelling at your governor not the feds. Think about it, name one federal govt agency that runs effeciently and doesnt cost more than was initially predicted. Im not a Repub or Dem, I dont trust any of them, but when the Feds start MADANTING anything I get worried, terrified actually.

    March 19, 2010 04:03 pm at 4:03 pm |
  24. Glennis

    I hope more states take them on. The crappy Democratic Senators from my state and the mostly crappy Democratic reps from my state didn't get US any special deals so we get to pay for the others. Yeah, THAT's fair. Of course, we have a worthless Democratic governor who can't run for re-election so HE doesn't care.

    March 19, 2010 04:03 pm at 4:03 pm |
  25. norwalkpa

    nobody brought up race until carole did.

    carole...if you are african-american...please, let me apologize once again for being white. not a racist. never have been. but i'm white...and i'm sorry carole.

    that you think the President had a prayer of being elected if it wasn't for white people?

    March 19, 2010 04:04 pm at 4:04 pm |
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