Legal News

Is Health-Care Reform Unconstitutional? (Part III)

By Ashby Jones

With each passing day, it appears that Congress may actually present to President Obama sometime soon a bill overhauling our health-care system. And with each passing week, it seems, another possible constitutional challenge to the bill gets aired.

Until now, the challenges have mostly revolved around the constitution’s commerce clause; essentially, whether Congress has the constitutional authority to pass such a sweeping law. (Click here and here for earlier discussions.)

But some state attorneys general are now wondering whether the eleventh-hour deal struck to win over Sen. Ben Nelson (D-Neb., pictured) late last year in fact violates the constitution as well.

Under the Nelson agreement, the federal government will pay all of Nebraska’s new Medicaid costs forever, while taxpayers in the other 49 states will have to pony up for the safety-net program for the poor.

But does such an arrangement violate Article I’s spending clause? A group of state AGs, all of whom are Republicans, have asked the question. Click here for the WSJ’s opinion piece on the matter. Reads the piece:

“In addition to violating the most basic and universally held notions of what is fair and just,” the AGs wrote last week to the Democratic leadership, the Article I spending clause is limited to “general Welfare.” If Congress claims to be legitimately serving that interest by expanding the joint state-federal Medicaid program, then why is it relieving just one state of a mandate that otherwise applies to all states? In other words, serving the nongeneral welfare of Nebraska-for no other reason than political expediency-violates a basic Supreme Court check on the “display of arbitrary power” that was established in 1937’s Helvering v. Davis.

But doesn’t Congress treat states differently all the time? Indeed it does. But, argue the writers:

[I]n this case there is simply no plausible argument for some kind of “general” benefit. The only state that gains from special treatment for Nebraska is Nebraska-and this actively harms all other states, which will have fewer tax dollars for their own priorities while effectively subsidizing the Cornhusker state.

Even one prominent Democrat, it seems — New York governor David Paterson — has some qualms about the arrangement. “The final bill must provide equitable federal funding to all states,” Paterson recently wrote in an op-ed in the Buffalo News. But this, as the WSJ piece acknowledges, could open the door to extending “the 100% Nebraska deal to all states to shut them up . . . ”

LBers, any thoughts?

Full post as published by Law Blog - WSJ.com on January 05, 2010 (boomark / email).