Cox joins Republican AGs threatening suit over health care reform

Michigan Attorney General Mike Cox is joining with 12 other Republican attorneys general to threaten a federal lawsuit challenging the so-called Nebraska compromise that helped get the health care reform bill passed in the Senate on Christmas Eve:

Republican attorneys general in 13 states say congressional leaders must remove Nebraska’s political deal from the federal health care reform bill or face legal action, according to a letter provided to The Associated Press Wednesday.

“We believe this provision is constitutionally flawed,” South Carolina Attorney General Henry McMaster and the 12 other attorneys general wrote in the letter to be sent Wednesday night to House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid.

“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,” they wrote.

As I noted when this group of AGs originally started complaining about the provision, it’s highly unlikely that such a lawsuit would succeed. They would have to base it on the Uniformity Clause of Article 1 Section 8 of the Constitution, but the deal in the health care reform bill was worded explicitly to get around that clause.

The deal that was cut to get Ben Nelson’s vote was one that should concern us all, but in reality it was little different from the kinds of deals that are cut to get legislation passed every day. The only reason it’s getting more attention now is that Nelson’s waffling took place so publicly, but similar deals are cut in private on virtually every bill ever passed in Congress. It’s an ugly reality, but it’s still reality.

And the fact is that the courts are generally very reluctant to get involved in such negotiations. The federal courts would likely dismiss the case, saying that it involves explicitly political questions that are best left to the ballot box rather than the courts.