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Wednesday, January 06, 2010

Law - "Some foes of health-care bill hope courts will stop legislation"

The Washington Post had a long story Sunday, reported by Ben Pershing, that began:

Opponents of the health-care reform bill are not giving up the fight, and some think their last, best hope to halt the legislation lies not in the U.S. Capitol but in the court across the street.

A small but vocal contingent of legal scholars and many Republican lawmakers argue that the measures passed by both chambers are unconstitutional and will be ruled so by the Supreme Court. Their primary target: the individual mandate, which requires people to get health insurance or pay a financial penalty of at least 2 percent of their income to the government. * * *

Conservatives have advanced other constitutional arguments against the reform plans, including that regulating insurance companies represents the illegal seizure of private property and that the Senate bill's excise tax on high-cost health plans impermissibly affects some states more than others.

In addition, 13 state attorneys general (from South Carolina, Washington, Michigan, Texas, Colorado, Alabama, North Dakota, Virginia, Pennsylvania, Utah, Florida, Idaho and South Dakota) have signed a letter that begins:
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.

Indiana's Attorney General has issued a press release this afternoon headed "Attorney General Zoeller to review Senate healthcare proposal." Some quotes:
INDIANAPOLIS – At the request of Senator Richard Lugar, Indiana Attorney General Greg Zoeller will conduct a legal analysis of the constitutionality of provisions of the federal healthcare bill regulating states that the U.S. Senate recently passed.

Under a state law, Indiana Code 4-6-8-2, the Indiana Attorney General's Office has the authority to review existing or proposed federal legislation for any of Indiana's U.S. senators or U.S. representatives at their request. Zoeller has received requests from Senator Lugar and other members of Congress asking the Attorney General's Office to perform legal research and analysis on particular provisions of Senate Amendment 2786 to the Patient Protection Affordable Care Act (H.R. 3590), and report back to them.

Zoeller said attorneys in his office will review questions of the bill's constitutionality and its impact upon state government agencies if the U.S. Senate version of the bill were to pass as written. He plans to provide a report to the congressional delegation and their legislative staffs in time for House-Senate conference-committee negotiations in Congress. * * *

Zoeller said that based on Lugar's request for advice, his office will review whether the provision funding Nebraska's expanded Medicaid obligations -- but not those of other states -- would be constitutionally valid.

Zoeller noted that the request to provide a legal review of the federal legislation will be given top priority by the Attorney General's Office, in consultation with state agencies whom Zoeller represents.

"Having worked on the staff of former Senator Quayle in the 1980s, I recognize that compromises sometimes are made during the legislative process to ensure passage, and that complex bills are often rewritten during the final reconciliation process," Zoeller noted. "At the state government level, the Attorney General's Office can assist our federal legislative colleagues by providing an objective evaluation of the current bill's legality, which will assist our congressional delegation in the final negotiations." * * *

As long as his review is under way, Zoeller will not be involved in any other review or possible legal challenge to the federal legislation that is being explored in other states.

"Shortly after taking office, I met in Washington, D.C., with members of Indiana's congressional delegation following a letter that notified them of this authority the state Attorney General has to perform legislative research and analysis. This little-known provision in state law was intended for a circumstance such as this, where proposed federal legislation could have a sweeping impact on state government," Zoeller said. "I am pleased to be able to assist in this matter through the authority of that statute."

The release also includes the text of IC 4-6-8-2:
The attorney-general shall also make any reasonable or appropriate investigation or study of any such existing or proposed federal legislation whenever he is specifically requested so to do by any of this state's senators or representatives in congress and report the result thereof as requested. (Formerly: Acts 1943, c.229, s.2.)
[More] See this article, haded "Lugar wants AG to review health bill," from Maureen Groppe of the Star Washington Bureau

Posted by Marcia Oddi on January 6, 2010 03:01 PM
Posted to General Law Related