Free Markets, Free People

Challenging The Health Care Reform Bill On Constitutional Grounds – Is It Really An Option?

One of the more dishonest ways the Congress is able to portray various spending bills as not adding to the deficit or being revenue neutral is to push mandates onto the states and have them pay a large portion of the cost. That way, that cost is hidden from the original numbers churned out by Congress and validated by the CBO. That’s the case in this health care bill and one of the primary reasons Sen. Ben Nelson sought an exemption for his state of Nebraska before he’d support the current Senate bill.

Well that’s not sitting well with any number of states going through hard financial times right now and seeing even more spending mandates coming their way in the health care reform legislation. They’re threatening to go to court if what they’re calling the “Cornhusker Kickback” is left to stand in the legislation:

Thirteen state attorneys general have sent a letter to Congress threatening legal action against health care reform unless a provision in the Senate bill given to Nebraska is removed.

The provision is known as the “Cornhusker Kickback,” because it gives Nebraska a permanent exemption from paying for Medicaid expenses that would be required of all the other states. This means that taxpayers in other states would be paying for an increase in Nebraska’s Medicaid population. Medicaid is a federal-state health care program for the poor.

“This provision is constitutionally flawed,” the attorneys general wrote. “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 the provision.”

I bring this to your attention because I think this may be the primary way those who oppose the health care bill will have to fight it once it has passed – in court.  There are all sorts of problems and pitfalls with such a strategy.  But I’m also of the opinion much of the bill is “constitutionally flawed” and wide open to challenge. Of course, given the rather liberal interpretations of that document in the past by SCOTUS, it’s rather difficult to predict whether challengers will have any success. However, I think the mandate to buy health insurance, for instance, is something which can be challenged on constitutional grounds. And obviously these 13 States Attorney Generals think they have constitutional ground to challenge the kick back (I wish they’d challenge the mandate to the states instead).

We’ll see, but supposedly that’s what the court is there for – although since Kelo, I’ve had very little confidence in the court’s actual desire or aim to uphold the actual intent of the document.



9 Responses to Challenging The Health Care Reform Bill On Constitutional Grounds – Is It Really An Option?

  • I don’t think the states will be successful attacking via the kickback provisions of the bill. The Congress is free to spend our money as it sees fit. There is no requirement for spending to be fair to all states.
    I think the individual mandate and the associated penalty is a much stronger case. But from my understanding of how the world works, we will have to wait until the mandate is actually applied. A challenge to the mandate would take several years before it could be taken to court.
    I think the best avenue of approach is funding and appointments. The Republicans, win or lose control of the House in the fall, could resolve to block funding of the law. The Senate could tie up appointments to the various agencies. In other words, delay, delay, delay. The President can not spend funds that are not appropriated. The courts can not force Congress to appropriate monies.
    Leave this law nothing more than a scarecrow of intentions.

  • The courts may be where the battle goes, but this specific point isn’t it.

    Spending isn’t fair between states now anyhow.  This continues that tradition. 

  • Steve C has it right.  The fundamentally flawed provision is the coverage mandate penalty.  A Ninth and Fourteenth Amendment challenge is nearly inevitable.

    The attorneys general have a better challenge that this is an impermissible use of Congressional authority.  In my humble opinion, the argument that health care and/or insurance is within the purview of the powers granted to the federal government is just laughable.  The concept of “interstate commerce” has been abused for decades, but the Supreme Court has finally shown signs that it is ready to reign Congress in.  (At least I think that’s what the overturning of the Gun Free Schools Act signifies.)

    I fail to see how this bill could be said to involve the channels, persons, or things involved in interstate commerce without essentially justifying any Congressional action that is even tangentially related to commerce.

  • Anyone sees/considered this?  It pretty much says the states are screwed as is…

  • Maybe we should repeal the amendment that requires a popular vote for senators. If senators were chosen by the state legislators, then we might see more federalism.

    • If senators could only take campaign contributions from residents in their own states, we’d have more federalism. 

  • Think it’ll go any better than the case against McCain-Feingold?

  • Ignoring the legal strength of the case, it will hopefully let the public know what’s in the bill.