commentary on Politics and a little bit of everything else

13 GOP Attorney General’s want the “Nebraska Compromise” stripped from the Healthacare Bill….

They have written to Speaker of the House Pelosi and Senate Majority Leader Reid formally requesting Senator Ben Nelson’s (D- Neb.) sweetner be eliminated as illegal……

Here’s more…..

“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,” they wrote.

The state officials say they are “contemplating” legal action but would not go through with it if it is removed from the bill. They claim they do not find any other Constitutional objections to the bill.

Some Republicans have argued that the bill’s individual mandate to buy health insurance also violated the Constitution.

…..and this is copy of the letter…….

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 legislation.

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

Ok, how far is this going to go?……Does a state have a chance against something the majority party wants?…..the Supremes can read the tea leaves also……

Stay tuned….

December 30, 2009 - Posted by | Breaking News, Government, Healthcare, Law, Media, Politics, The Economy | , , , , ,


  1. Reid’s health insurance reform bill is fill of legal defects.

    Orrin Hatch wrote about the unconstitutional aspects of the bill.


    Ironically, his health bill may very well be DOA.

    Comment by Ben | December 30, 2009 | Reply

  2. so wait a minute…let me see if I got this straight?

    that means that social security is illegal to….since EVERY BODY now has to pay for it?….right?

    how about taxes?

    the argumenet is pure BS!……

    Comment by jamesb101 | December 30, 2009 | Reply

  3. GOP give it up!

    THERE IS GONNA BE A BILL!…..and they locked themselves out of the process!

    Bill Clinton and Hillary have to laughting their rears off!

    Comment by jamesb101 | December 30, 2009 | Reply

  4. SS isn’t commerce. It’s a tax. The bill is filled with legal issues as it stands today. If it is to persist to become law it must be modified. As it is, it’s definitely unconstitutional to force people to buy insurance. In addition, the fact remains that the GOP was locked out of process by the DNC.

    Comment by Ben | December 31, 2009 | Reply

  5. yo Ben……I do not accept that argument…..It’s like all the people who complain that the Health bill is socialism……bull crap…there are tons of ‘social’ programs….you where born with them here and they will continue to multiply……

    Comment by jamesb101 | December 31, 2009 | Reply

  6. Yo James, it’s not an argument. It is an immutable fact.

    The Constitution is clear about government’s role in commerce and states rights. Again, while they can regulate aspects of commerce, they cannot force citizens to participate in it. If it were not so, as Hatch points out, we wouldn’t need a stinking Cash For Clunkers program and instead we would have read about a new law forcing us to go not only buy a new car, but only red ones with a radio which only lets in NPR.

    Comment by Ben | December 31, 2009 | Reply

  7. I think you’re hung up on the idea that taxation is a product.

    What the bill is saying is that we will be forced to buy an insurance product of our choosing and if we elect not to purchase that product, well will be fined as if we are criminal.

    Comment by Ben | December 31, 2009 | Reply

  8. my argument is the law is applied by men….and few women…he, he, he……

    they will always do what expedient at the time politically…..

    they law should be you vote for someone to stay in office…but we have a separate law for presidents to leave office after two terms for the simple reason that FDR stayed for a third term…..

    people don’t want to acknowledge it….but the law IS flexible…..

    Comment by jamesb101 | December 31, 2009 | Reply

  9. oh, I do understand…..

    I have to buy car insurance, homeowners insurance, an whole lot of other stuff that I’m not forced to..but have to have…..

    it’s all the same in the end…..

    you gotta have it……

    Comment by jamesb101 | December 31, 2009 | Reply

Leave a Reply to jamesb101 Cancel reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: