The "Legal" Challenge to the Nebraska Deal
by Jonathan Singer, Thu Dec 24, 2009 at 08:44:10 AM EST
Republicans in a number of states are clearly getting antsy at the deal struck to provide increased Medicaid dollars to the state of Nebraska, lining up Attorneys General from a number of states to "probe" the constitutionality of the deal. Yet it's pretty clear what this is: a political stunt rather than a genuine substantive challenge.
First, look at the timing of this. Texas' Republican Attorney General Greg Abbott, whose prominent role in this "probe" neatly coincides with his filing for reelection on Tuesday, told the Associated Press that the AGs "probably won't act until after the bill passes" (emphasis added). That word "probably" is quite conspicuous, suggesting that Abbott and others possibly have legal recourse before a bill passes (leaving aside the question of whether they would have standing to challenge after the passage of the bill, or whether they could win on the merits in such a suit). I am aware of no provision in the United States Constitution that empowers anyone to file suit to enjoin Congress from legislating, nor can I fathom the Supreme Court or any other court usurping legislative power, all of which are "vested in a Congress of the United States" under Article I, § 1 of the Constitution.
Second, look at the issue of standing, whether or not the plaintiff is sufficiently connected to the alleged harm. The AP notes that this group is looking for a citizen to challenge this provision, suggesting a concession that the AGs themselves would not have standing even after a bill passes. Yet it's not even clear that a citizen would have standing to challenge the deal. The Supreme Court has consistently held that taxpayers have extremely limited standing in challenging what they view to be improper allocation of their tax dollars.
Third, look at the hedging in the language of another of the leaders in this effort, South Carolina's Republican Attorney General Henry McMaster: "Whether in the court of law or in the court of public opinion, we must bring an end to this culture of corruption." That about says it all. If this "probe" was about a legal challenge, the question would be over the constitutionality of the deal, not about a resort to political rhetoric -- a play to the "court of public opinion." Political rhetoric doesn't sway judges. Even Politico(!) found this noteworthy, writing, "it was hard to overlook the distinctly nonlegalistic approach various attorneys generals took Wednesday toward the provision."
Fourth, look at the complete lack of explanation of the supposed constitutional deficiency of the deal. I have read at least a half dozen articles on this "probe" and haven't seen a single constitutional provision that the deal purportedly or even potentially violates. Not one. Indeed, I have racked my brain for hours trying to come up with some plausible explanation, and have discussed this with a number of people with legal backgrounds, and still have difficulty coming up with even a single rationale for this "probe." Different states get different amounts of money from the federal government, a practice that has never to my knowledge been overturned on the basis of these differences. Congress has similarly passed state-specific legislation, which also to my knowledge never been overturned for being state-specific. Maybe there's a different explanation, but I haven't seen it. Nor, for that matter, has the conservative legal blog The Volokh Conspiracy, which is also "unsure of the basis upon which such things could be challenged as unconstitutional."
Fifth, look at the motives of the politicians involved. I already noted above the coincidence that is the announcement of this "probe" and the announcement that Texas AG Abbott will run for reelection. There are a number of other coincidences, such as the fact that many of these AGs are either already running for Governor or gearing up for future runs. These might all just be coincidences. Or they might not.
Look, my mind is open here. I'm interested in reading constitutional law. That's one of the reasons why I am in law school. I would love to read a compelling and creative argument as to why, legally speaking, this Nebraska deal isn't kosher. But I haven't read one yet, and not for lack of searching. That's pretty telling, at least from my vantage.