Wednesday, January 13, 2010

Constitutional challenge to special break for Nebraska in Senate health bill

I just watched a very impressive performance by Henry McMaster, South Carolina's attorney general, on C-SPAN. ( Seeing it was just one of several little dividends I have gotten from my temporary inability to ride my indoor bicycle while recuperating from yesterday's extraction of a wisdom tooth. Normally at this time of day I would be reading something while getting some miles. )

McMaster was speaking for 15 state (and territory) attorneys general who are complaining about the special treatment the Senate version of health care reform accords to Nebraska. The special provision was added to the bill in order to get Nebraska senator Nelson to provide the needed 60th vote to break the Republican filibuster preventing the bill from getting to a vote.

The bill now provides that all extra costs in Nebraska resulting from the bill's expansion of Medicaid will be paid by the federal government. Under the usual Medicaid rules program costs are shared by the federal government and the state governments, so expanding that program imposes unfunded mandates on the states for their percentage of the increased costs.

As McMaster pointed out, most state governments currently are under extreme financial pressure, and the last thing they need is additional unfunded mandates-----orders from Washington to spend more state money.

Under the circumstances, McMaster argues the lack of uniformity in treatment of the states makes the Senate bill constitutionally suspect. If his and others' efforts to get this changed do not succeed they will probably bring a lawsuit challenging the constitutionality if the bill becomes law.

McMaster telephoned Senator Nelson and reported that Nelson said he would have preferred that all states receive the same break Nebraska did. But of course if this were the case it would greatly increase the costs of the bill to the federal government and would push those costs past the limit announced by Congressional Democrats and by President Obama. Just helping Nebraska keeps the increased federal costs within those limits.

According to some sources, state authorities who are unhappy with the new unfunded mandate are being quietly told to keep quiet about it until the bill is passed into law, with the promise that they will then be taken care of like Nebraska. This would mean the additional federal costs would be tacked on to the bill only after it is too late to reject it because it surpasses the cost limits to which the President and his congressional allies have committed themselves.

Of course this is all very unseemly, and one can hope that a general awareness of these tactics will prevent the bill from enactment or that the courts will shoot it out of the water if it is enacted into law.

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