Thirteen Attorney Generals Question Constitutionality Of Nelson’s ‘Nebraska Deal’

Conservative lawmakers have tried to dismantle health care reform by questioning the constitutionality of the requirement to purchase health insurance, but now attorney generals in at least 13 states are challenging the so-called Nebraska sweet heart deal secured by Sen. Ben Nelson (D-NE) to fund Nebraska’s Medicaid expansion for perpetuity.

In a letter to House Speaker Nancy Pelosi (D-CA) and Senate Majority Leader Harry Reid (D-NV), the attorneys generals from South Carolina, Washington, Michigan, Texas, Colorado, Alabama, North Dakota, Virginia, Pennsylvania, Utah, Florida, Idaho and South Dakota “wrote that they consider the [Nebraska] provision ‘constitutionally flawed‘ and demanded that it be stricken from the final bill”:

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…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 consistent with protections afforded by the United States Constitution against arbitrary legislation…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…We ask that Congress delete the Nebraska provision from the pending legislation, as we prefer to avoid litigation.

But constitutional scholars argue that the ‘Nebraska compromise’ challenge is as specious as the organized conservative effort to constitutionally invalidate the individual mandate. ThinkProgress’ Ian Milllhiser explains that “the requirement that laws not be ‘arbitrary and capricious’ or that conditional grants be related ‘to the federal interest in particular national projects or programs’ are largely paper tigers. In recent decades, the Supreme Court has only struck down laws as arbitrary and capricious in utterly egregious cases that in no way resemble the health bill–such as when Colorado enacted an anti-gay state constitutional amendment in the mid-1990s that served no purpose other than to display the state’s animus towards gay people.”

“The limit on conditional grants has literally never been invoked in the Supreme Court’s entire history to strike down a law, and besides, funding Medicaid–even in just one state–is obviously connected to the federal interest is providing health care to those who can’t afford it,” Millhiser says. Mark Tushnet, a constitutional law professor at Harvard, tells TPMmuckraker that an ‘equal protection’ argument “could be defeated in court by satisfying a so-called ‘rational basis’ standard for favoring Nebraska.” For example, the government could use Nelson’s defense of the provision and argue that “the Senate’s ultimate goal was for every state’s Medicaid costs to be covered in full, and that the Senate was just starting with Nebraska.”

Whatever the wisdom of Nelson’s provision, “Congress has the power to determine that people in a certain state or geographic region are particularly in need of targeted aid, and may constitutional pass a bill giving such aid to them. If the arguments advanced by this letter were ever adopted by the Supreme Court, it’s not clear that Congress could ever enact a bill whose impact was targeted at the residents of a particular state or region. Because Katrina only destroyed New Orleans, for example, residents of Chicago could challenge a law providing targeted aid to Katrina victims on the theory that it discriminates against them by not also providing aid to people in Chicago,” Milllhiser says.

The AG’s letter does not directly challenge the constitutionality of the individual mandate, but it is part of a broader industry-sponsored effort to invalidate health care reform in the court room. Spurred by Senators Jim DeMint (R-SC), Kay Bailey Hutchison (R-TX), Orrin Hatch (R-UT) and John Ensign (R-NV) and the health insurance industry, attorney generals in at least two states have also announced plans to conduct constitutional reviews of the individual mandate provision.

“Quite obviously, this issue raises very serious concerns about equity, tax fairness as well as the constitutionality of having federal tax levies and mandates that treat one state differently from all the others,” South Carolina Attorney General Henry McMaster said. Florida attorney general Bill McCollum , who is running for Governor, also recently announced “grave concerns about the constitutionality of this mandate.” “Such a ‘living tax’ is worrisome because it would be levied on a person who does nothing, a person who simply wishes not to be forced to buy health insurance coverage.”

McCollum has also sent a letter to other AGs asking them to “consider joining with me in conducting a constitutional analysis of the individual mandate.”