December 28, 2009
State AGs Challenge Constitutionality of Nelson's Nebraska Compromise
Senators Lindsay Graham and Jim DeMint last week asked South Carolina State Attorney General Henry McMaster to look into the constitutionality of the provision in the Senate health care overhaul bill exempting Nebraska from proposed new Medicaid costs. (The Senate bill would increase health care coverage in large part by increasing eligibility for the Medicaid program. Many states are concerned about their ability to cover the new costs. In a move dubbed the "Cornhusker Kickback" by opponent, Senator Ben Nelson of Nebraska agreed to support the measure in exchange for exempting Nebraska from these new costs. The federal government would pick them up instead.) We posted most recently on related issues here.
There's some speculation that a group of Republican state AGs may seek to challenge the measure under the Port Preference Clause (Article I, Sec. 9). (Talking Points Memo covered this here and here.) You may be excused for not being on top of that one; here it is:
No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obligated to enter, clear, or pay Duties in another.
If you'd like a little more on the Clause, check out Pennsylvania v. Wheeling & Belmont Bridge Co. (1855) and Louisiana Public Service Commission v. Texas & NOR Co. (1931). According to Louisiana Public Service Commission, "The specified limitations [in the Port Preference Clause] on the power of Congress were set to prevent preferences as between states in respect of their ports or the entry and clearance of vessels." The Clause doesn't seem to be a very good candidate for a bill having nothing to do with ports, or port preferences, or the entry and clearance of vessels, etc.
Opponents are also arguing the General Welfare Clause--that Congress will have exceeded its authority under the General Welfare Clause by so favoring one state. (The Alabama AG makes this point in a YouTube video at the end of this TPM story.) This too seems awfully weak: The Court adopted the more expansive Hamiltonian position on the scope of Congress's spending power in United States v. Butler (1936) and has generally deferred to Congress in determining what spending promotes the general welfare.
Finally, Mark Tushnet suggests in this TPM story that the states may have a "slightly more viable" equal protection argument, but that it would likely fail at rational basis review.
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