The "Legal" Challenge to the Nebraska Deal

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.

Tags: 111th Congress, healthcare reform (all tags)



Re: The "Legal" Challenge

Michigan's attorney general is running for governor as well.  What's odd is that I distinctly remember hearing that Michigan was getting some candy in this bill too.

by Steve M 2009-12-24 08:56AM | 0 recs
Re: The "Legal" Challenge

He's a GOP candidate for Gov. That pretty much explains it - politics over the law.

by vecky 2009-12-25 01:12PM | 0 recs
Re: The "Legal" Challenge

Is kosher the legal term or is it pass mustard?

Just kidding.

It seems that there are two tracks. Connecticut seems more interested in securing the same concession that Nebraska secured while Texas & South Carolina et al are pursuing a constitutional test.

Here's Rick Perry's letter to the Texas Attorney General (pdf) and an overview from a conservative blog:

Gov. Rick Perry today sent a letter asking other governors to join him in ongoing efforts to assert the constitutional rights of states as guaranteed under the 10th Amendment with regard to the federal health care bill being forced through by Congress. He urged the governors to support and join efforts by Texas Attorney General Greg Abbott and several other state attorneys general to determine the constitutionality of a compromise in the pending federal health care legislation exempting the state of Nebraska from increased Medicaid costs resulting from the bill's passage.

"As the chief executive officers of our individual sovereign states, we must stand up to this unprecedented intrusion in to our lives and the rights of our citizens. We must demonstrate resolve in the face of this infringement," Gov. Perry wrote in the letter. "Texas Attorney General Greg Abbott is joining with several other state attorneys general to place this deal under proper scrutiny, to determine if such an exclusion is unconstitutional. His office, along with mine, will continue to explore all options available to us as we attempt to minimize the damages that can be caused to Texans by this ill-advised piece of legislation."

In Texas, this health care bill will cost up to $21 billion over the next 10 years, adding an estimated 2 million more people to our Medicaid rolls.

In his letter the governor emphasized that this bill will impose unprecedented intrusion in to the lives and the rights of citizens by mandating that every American purchase health care coverage or face penalties. Additionally, taxpayers in Texas and in most other states will pay even more to effectively subsidize expanded Medicaid for Nebraska and select states that caught additional sweeteners on issues like rural health care and Medicare Advantage for some seniors in a few states.

by Charles Lemos 2009-12-24 08:58AM | 0 recs
Re: The "Legal" Challenge

States' Rights? Really?

by QTG 2009-12-24 09:04AM | 0 recs
Re: The "Legal" Challenge

Perry is a nutcase. I mean these are people willing to break up the country to prove some obscure point.

by Charles Lemos 2009-12-24 09:08AM | 0 recs
Re: The "Legal" Challenge

He says it like adding two million people to Medicaid rolls is a bad thing.

This in a state with one of the highest percentages of uninsured.

This is what we're up against. Hell Bush would have vetoed this legislation for that sole fact alone.

by vecky 2009-12-24 09:32AM | 0 recs
Re: The "Legal" Challenge

No, the highest percentage of uninsured.

by johnmorris 2009-12-25 05:15PM | 0 recs
This bill is a piece of crap

Irrelevant....this bill is a piece of crap....and the backroom, middle of the night plan defies everything Obama said the process and the bill would encompass. I wrote my Senator Sherod Brown again today and told him he lost my vote.

by BuckeyeBlogger 2009-12-24 09:35AM | 0 recs
Re: This bill is a piece of crap

It was really scandalous for them to slap the Senate bill together in the span of a mere 6 months.

by Steve M 2009-12-24 09:38AM | 0 recs
Re: This bill is a piece of crap

If Olympia Snowe had her way, it would have taken 6 years, and she'd still complain about "rushing it"

by LordMike 2009-12-24 09:53AM | 0 recs
Re: This bill is a piece of crap

No whats scandalous is a bill with mandates and no cost containment. Whats scandalous is that this bill had to include a bunch of sweetheart giveaways costing taxpayers money. Whats scandalous is that this bill will do nothing to truly improve access, cost or quality of care. Whats scandalous is that this bill is nothing but a pig with lipstick. Anyone who supports this turd is dumber than a box of rocks.

by BuckeyeBlogger 2009-12-24 10:00AM | 0 recs
Re: This bill is a piece of crap

That's true, if there was no cost containment in the bill that would be awful.  If the bill was going to do nothing to improve access that would also be awful.  Another thing that's awful is the way people who have no idea what's in the bill get to go around spewing nonsense about it, but that's freedom of speech for ya.

by Steve M 2009-12-24 10:11AM | 0 recs
Re: This bill is a piece of crap For example Arizona Congressman Raúl M. Grijalva who just stated that the Senate Bill will do nothing to adequately expand coverage and control costs, is wrong as well? Howard Dean, who is also against this bill for the same reason is wrong as well. Dean's own words just last week:

"   If I were a senator, I would not vote for the current health-care bill. Any measure that expands private insurers' monopoly over health care and transfers millions of taxpayer dollars to private corporations is not real health-care reform. Real reform would insert competition into insurance markets, force insurers to cut unnecessary administrative expenses and spend health-care dollars caring for people. Real reform would significantly lower costs, improve the delivery of health care and give all Americans a meaningful choice of coverage. The current Senate bill accomplishes none of these.

   Real health-care reform is supposed to eliminate discrimination based on preexisting conditions. But the legislation allows insurance companies to charge older Americans up to three times as much as younger Americans, pricing them out of coverage. The bill was supposed to give Americans choices about what kind of system they wanted to enroll in. Instead, it fines Americans if they do not sign up with an insurance company, which may take up to 30 percent of your premium dollars and spend it on CEO salaries -- in the range of $20 million a year -- and on return on equity for the company's shareholders. Few Americans will see any benefit until 2014, by which time premiums are likely to have doubled. In short, the winners in this bill are insurance companies; the American taxpayer is about to be fleeced with a bailout in a situation that dwarfs even what happened at AIG."

So your right, you know more about this than Dean? Thats what your saying? No...your just an arrogant no nothing

by BuckeyeBlogger 2009-12-24 05:37PM | 0 recs
Re: This bill is a piece of crap

Dean supports the Senate bill now.  But I'm very familiar with how you cherry-pick whoever happens to agree with you and deem them to be the most credible source on earth.

Virtually every health-care economist believes this bill will control costs, and you, some guy on the Internet who can't even spell, just magically knows they're wrong... but I'm the arrogant know-nothing, yeah right.  Oh wait, the "arrogant no nothing."

by Steve M 2009-12-24 05:59PM | 0 recs
(Comment Deleted)

This comment has been deleted by an administrator.

by BuckeyeBlogger 2009-12-24 06:08PM | 0 recs
Re: This bill is a piece of crap

Virtually every healthy care economist believes the bill will save money. is that like virtually every scientist believes global warming is man made? Oh wait, except for those 30,000 or so, who say ita a load of crap. But Al Gore who never met a lie he couldnt tell, says its settled science. Go back to your world of blinders....

by BuckeyeBlogger 2009-12-24 06:11PM | 0 recs
Re: This bill is a piece of crap

So you know more about this than Howard Dean?

by Steve M 2009-12-24 06:24PM | 0 recs
Re: This bill is a piece of crap

Amazing how one day he is so emphatic about it being a terrible bill and just a few days later completely change his mind.....he caved......

by BuckeyeBlogger 2009-12-25 06:30AM | 0 recs
Re: This bill is a piece of crap

I understand, he was the most credible source on earth right up until the moment he stopped agreeing with you.

by Steve M 2009-12-25 08:47AM | 0 recs
Re: This bill is a piece of crap

Your not worth bothering with, Like I said, you know it all....any opinion that differs from your is a lie......

by BuckeyeBlogger 2009-12-25 08:56AM | 0 recs
Re: This bill is a piece of crap

Best analysis I have seen of how this bill punishes middle and lower income workers...: are/wm2716.cfm

by BuckeyeBlogger 2009-12-25 07:04AM | 0 recs
Re: This bill is a piece of crap

lol, Stow away the partisan hack sites.

by vecky 2009-12-25 01:14PM | 0 recs
Why not do the same for the other 49 states?

Or allow states to opt-in for that?

Is the cost prohibitive? Is there no political will?

And will the Nebraska and Louisiana compromises even survivie conference?

by NoFortunateSon 2009-12-24 10:41AM | 0 recs

I just wrote to my senator why my state, which pays almost 30% more in per capita federal tax than Nebraska did not get a similar deal. I blame it on my idiotic senators who were not as smart as Ben Nelson. At the end of the day, you are elected to do what is best for the state, and if you cannot do that you dont deserve to represent people of the state.

by gladiatorsback 2009-12-24 10:42AM | 0 recs
Re: Legal Merits

The problem isn't the merits of the law, it is that people like Clarence Thomas and Scalia are probably itching to get involved in this debate and render a "service" to the nation along the lines of Bush v. Gore.

by Bob H 2009-12-25 01:51AM | 0 recs


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