Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Michigan Attorney General Mike Cox has joined with several other state AGs to research the question of whether the so-called Nebraska compromise -- incentives added to the Senate health care reform bill to gain the vote of Nebraska Sen. Ben Nelson to end the debate and bring the bill to the floor for a vote -- might be unconstitutional. MSNBC reports:
The top prosecutors in seven states are probing the constitutionality of a political deal that cut a funding break for Nebraska in order to pass a federal health care reform bill, South Carolina's attorney general said Tuesday.Attorney General Henry McMaster said he and his counterparts in Alabama, Colorado, Michigan, North Dakota, Texas and Washington state -- all Republicans -- are jointly taking a look at the deal they've dubbed the "Nebraska compromise."
"The Nebraska compromise, which permanently exempts Nebraska from paying Medicaid costs that Texas and all other 49 states must pay, may violate the United States Constitution -- as well as other provisions of federal law," Texas Attorney General Greg Abbott said.
I couldn't imagine what constitutional provision might be invoked to make that compromise, as unseemly as it may be, unconstitutional. I called up a friend who teaches constitutional law; he couldn't either. And the fact is that the courts would almost certainly not involve themselves in such a political question.
The Republicans are acting as though the deal to get Nelson's vote was some sort of unprecedented instance of political corruption, a position that is laughable to anyone who has watched how legislatures operate. This is, in fact, quite routine. That's one reason for the old witticism that laws and sausage are two things you don't want to watch being made because the process is much uglier than the final product.
The process of making legislation requires negotiation and sweetheart deals to help a legislator out and get something for his state or district are cut all the time in order to secure their vote -- and this is done by both parties. The faux outrage coming from Republicans on this may well be effective, but only because the audience it's aimed at is ignorant of the typical legislative process. Then again, faux outrage has become a primary currency in our political system.
There may well be some statutory provision that makes this particular deal illegal, but since new law supercedes old law even that seems unlikely to get a court's attention. There certainly is no constitutional issue that a court would concern themselves with in this situation.
And just a side bit of media criticism: MSNBC should not have described these AGs as prosecutors in this situation. An attorney general sometimes does act as the state's highest prosecutor, but any legal action taken here would be civil rather than criminal. No one is facing potential prosecution under any circumstances.
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What makes this so amusing is that if they had decided to work with the Democrats instead of going all out to block the deal, there are probably some Republicans moderate* enough that they could have found some compromise more to their liking. But that was never likely to happen. It plays better to their audience to say "we tried to stop this terrible bill" or "they must no it's terrible as they forced a really late vote" than to say "yeah, it's not perfect, but we worked with them and got some of the really bad provisions out of the way" or "We weren't going to compromise, or be reasonable here, so there was no point in them waiting once they had their sixty"
*I mean moderate in the everyday sense of not an extremist, not the political sense of someone who will wreck the bill if it might allow funding of abortions
Posted by: G. Shelley | December 28, 2009 11:20 AM
The contention may be article I section 8, the uniformity clause.
http://en.wikipedia.org/wiki/Taxing_and_Spending_Clause#Uniformity_Clause
Posted by: TheDude | December 28, 2009 11:57 AM
the uniformity clause seems rather unlikely to succeed as a legal challenge in this situation. If that clause were to mean that every form of federal spending on the states must be uniform, there is an almost endless list of violations of that clause going on. Federal spending sent to the states has never been uniform.
Posted by: Ed Brayton | December 28, 2009 12:19 PM
The process of making legislation requires negotiation and sweetheart deals to help a legislator out and get something for his state or district are cut all the time in order to secure their vote -- and this is done by both parties.
This is a core problem with out legal system. Regardless of your opinion of the healthcare bill, there is no doubt that it was stupendously expensive to pass in terms of pork (not all of which is even known yet).
This is classic 'lying for Jesus.' Pork does not become ok just because it's 'for a good cause'. It distorts rational governance every bit as much (probably more) than lobbyist funding pressures.
Posted by: jay | December 28, 2009 12:29 PM
The simple fact is that the Republicans have to oppose this legislation and have to portray it in as negative a light as possible. If this comes out of conferences as a legitimate first step in health care reform (big "if"), and becomes a positive, popular form of legislation, they will have a very difficult time winning national offices for the foreseeable future.
If, on the other hand, they can delay it, hamstring it, cripple it, or kill it prior to November, they have a chance of winning enough seats to scare moderate Democrats and stonewall even more legislation. If they get to the point where they have 41 seats in the senate, they can then spend the next year to 18 months using the procedural filibuster to stop just about everything the Democrats want to do and then can campaign on the Democrats' inability to accomplish any of their goals at the same time campaigning against those goals, touting their ability to block those goals, etc.
In a sense this is similar to the Palin "hail mary" in the '08 election. If successful they could be back in the White House in '13, if they fail they might not be back in the White House for 20 years, hell they might destroy themselves as a party.
Posted by: dogmeatib | December 28, 2009 1:33 PM
It's clearly an attempt to delay or kill the bill. They might try to argue that by singling out Nebraska, it's a bill of attainder or equal protection violation.
Posted by: matt | December 28, 2009 3:20 PM
The uniformity clause may be applicable in this case because, unlike Fed spending, Neb, LA and Ark and having their Medicare/Medicaid taxes reduced relative to the remainder of the Country. Anyway, it's not ripe until a compromise bill gets out of Congress and is signed by Obama.
Posted by: J Ford | December 28, 2009 5:12 PM
Actually, the Supreme Court could find only the particular portion of the bill relating to medicaid in Nebraska unconstitutional but the rest of the bill perfectly OK.
Posted by: SLC | December 28, 2009 5:39 PM
dogmeatib:
In at least one sense, they've already succeeded in making moderate / conservative Dems be more reticent about other left of center legislation (cap and trade, here):
http://www.washingtonmonthly.com/archives/individual/2009_12/021655.php
Posted by: Kyorosuke | December 28, 2009 6:24 PM
What's laughable is how the wingnuts will pull any rabbit to gain some legitimacy in opposing this reform. WHAT THE HELL does ANY state AG have to say about FEDERAL legislative bills?
Maybe once it's passed and turning into executive policy implementation directed towards those states then I could see filing a complaint but at this point they need to STFU.
Posted by: megan | December 28, 2009 6:45 PM
More than the Uniformity Clause, the more relevant piece would be Section 9 (Congressional limits):
However, my understanding is that the SC has never dealt with this for any reason not actually being about naval ports.
Posted by: Hanspeter | December 28, 2009 10:09 PM
@Kyorosuke: Which is pretty strange, since this bill isn't exactly left of center anyway. It's far more slightly or moderately right of center than left of center.
That or I slept through the lecture that stated liberals support ensuring blatantly corrupt private corporations never fail by forcing the entire population to deal with them.
Posted by: JThompson | December 29, 2009 5:53 AM