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Florida attorney general joins 12 other states attorney generals in letter against health care bill

Attorney General McCollum joined several Attorneys General yesterday in sending a letter to Speaker Nancy Pelosi and Majority Leader Harry Reid regarding their concerns about the provision in the health care legislation that affords special treatment to the state of Nebraska under the federal Medicaid program.

“As chief legal officers of our states we are contemplating a legal challenge to this provision and we ask you to take action to render this challenge unnecessary by striking that provision,” wrote the Attorneys General of South Carolina, Alabama, Colorado, Florida, Idaho, Michigan, North and South Dakota, Pennsylvania, Texas, Utah, Virginia, and Washington.

A copy of the letter is pasted below.

December 30, 2009
The Honorable Nancy Pelosi
Speaker, United States House of Representatives
Washington, DC 20515
The Honorable Harry Reid
Majority Leader, United States Senate
Washington, DC 20510
The undersigned state attorneys general, in response to numerous inquiries, write to
express our grave concern with the Senate version of the Patient Protection and
Affordable Care Act (“H.R. 3590”). The current iteration of the bill contains a provision
that affords special treatment to the state of Nebraska under the federal Medicaid
program. We believe this provision is constitutionally flawed. As chief legal officers of
our states we are contemplating a legal challenge to this provision and we ask you to take
action to render this challenge unnecessary by striking that provision.
It has been reported that Nebraska Senator Ben Nelson’s vote, for H.R. 3590, was
secured only after striking a deal that the federal government would bear the cost of
newly eligible Nebraska Medicaid enrollees. In marked contrast all other states would
not be similarly treated, and instead would be required to allocate substantial sums,
potentially totaling billions of dollars, to accommodate H.R. 3590’s new Medicaid
mandates. In addition to violating the most basic and universally held notions of what is
fair and just, we also believe this provision of H.R. 3590 is inconsistent with protections
afforded by the United States Constitution against arbitrary legislation.
In Helvering v. Davis, 301 U.S 619, 640 (1937), the United States Supreme Court warned
that Congress does not possess the right under the Spending Power to demonstrate a
“display of arbitrary power.” Congressional spending cannot be arbitrary and capricious.
The spending power of Congress includes authority to accomplish policy objectives by
conditioning receipt of federal funds on compliance with statutory directives, as in the
Medicaid program. However, the power is not unlimited and “must be in pursuit of the
‘general welfare.’ ” South Dakota v. Dole, 483 U.S. 203, 207 (1987). In Dole the
Supreme Court stated, “that conditions on federal grants might be illegitimate if they are
unrelated to the federal interest in particular national projects or programs.” Id. at 207. It
seems axiomatic that the federal interest in H.R. 3590 is not simply requiring universal
health care, but also ensuring that the states share with the federal government the cost of
providing such care to their citizens. This federal interest is evident from the fact this
legislation would require every state, except Nebraska, to shoulder its fair share of the
increased Medicaid costs the bill will generate. The provision of the bill that relieves a
single state from this cost-sharing program appears to be not only unrelated, but also
antithetical to the legitimate federal interests in the bill.
The fundamental unfairness of H.R. 3590 may also give rise to claims under the due
process, equal protection, privileges and immunities clauses and other provisions of the
Constitution. As a practical matter, the deal struck by the United States Senate on the
“Nebraska Compromise” is a disadvantage to the citizens of 49 states. Every state’s tax
dollars, except Nebraska’s, will be devoted to cost-sharing required by the bill, and will
be therefore unavailable for other essential state programs. Only the citizens of Nebraska
will be freed from this diminution in state resources for critical state services. Since the
only basis for the Nebraska preference is arbitrary and unrelated to the substance of the
legislation, it is unlikely that the difference would survive even minimal scrutiny.
We ask that Congress delete the Nebraska provision from the pending legislation, as we
prefer to avoid litigation. Because this provision has serious implications for the country
and the future of our nation’s legislative process, we urge you to take appropriate steps to
protect the Constitution and the rights of the citizens of our nation. We believe this issue
is readily resolved by removing the provision in question from the bill, and we ask that
you do so.
By singling out the particular provision relating to special treatment of Nebraska, we do
not suggest there are no other legal or constitutional issues in the proposed health care
Please let us know if we can be of assistance as you consider this matter.
Henry McMaster
Attorney General, South Carolina
Rob McKenna
Attorney General, Washington
Mike Cox
Attorney General, Michigan
Greg Abbott
Attorney General, Texas
John Suthers
Attorney General, Colorado
Troy King
Attorney General, Alabama
Wayne Stenehjem
Attorney General, North Dakota
Bill Mims
Attorney General, Virginia
Tom Corbett
Attorney General, Pennsylvania
Mark Shurtleff
Attorney General, Utah
Bill McCollum
Attorney General, Florida
Lawrence Wasden
Attorney General, Idaho
Marty Jackley
Attorney General, South Dakota

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  5. McCollum files amended lawsuit against health care bill

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Posted by Andrea Freygang on Dec 31 2009. Filed under Broward County, Federal Government, Fort Lauderdale, Local news, Tallahassee. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

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