South Carolina Attorney General Henry McMaster told CNN he and Florida Attorney General Bill McCollum are ready to take issue with a controversial provision known as “the cornhusker kickback” that exempted the state of Nebraska from paying for Medicare costs and with another provision that mandates all Americans buy health insurance.
The provision giving special treatment to Nebraska was not included in the House bill unveiled Thursday but the legislation must be returned to the Senate before final passage. Democratic leaders have vowed that provision is dead but thirteen other attorney generals in addition to McMaster and McCollum have already signed on to the plan to file a lawsuit if the so-called “cornhusker kickback” is included in any final version of the bill signed by Obama.
But even if that controversial provision is removed, McMaster and McCollum say the bill’s individual mandate provision is an unconstitutional encroachment on state authority as protected by the 10th Amendment – the part of the Constitution that provides all powers not explicitly granted to the federal government continue to remain with the states.
“The individual mandate is unconstitutional and a violation of state sovereignty and individual liberty,” McMaster told CNN. “This is the most egregious, unconstitutional legislation that we can remember.”
But proponents of the legislation maintain it is clearly constitutional under the federal government’s constitutional power to regulate interstate commerce – a power the Supreme Court has long said provides Congress with wide discretion to pass legislation in areas not explicitly mentioned in the Constitution.
But McMaster says this bill is a clear departure from what the Supreme Court has said was permissible in the past because, instead of regulating a pre-existing purchase, the health care bill requires individuals to make a purchase of insurance coverage.
“If you choose to get into interstate commerce, the Congress can regulate it,” he said. “But here, the difference is that this is requiring folks to get into interstate commerce by buying insurance. That’s blatantly unconstitutional I believe.”