Obamacare sparking 10th Amendment rebellion, action in seven states


By: Mark Tapscott
Editorial Page Editor

12/22/09 6:01 PM EST

Looks like the steadily growing list of constitutional, ethical and political outrages that constitute the Harry Reid version of Obamacare is sparking a rebellion in the states, as AP reports South Carolina's attorney general plans to investigate the vote-buying that surrounded the proposal in the Senate majority leader's office.

According to AP, South Carolina's Henry McMaster is being joined by the attorneys general of Michigan and Washington state in a suit to determine the constitutionality of the Obamacare proposal. Their initiative was prompted by a request from South Carolina's two senators, Lindsay Graham and Jim DeMint, both Republicans.

Attorneys-general in at least four other states are also considering joining McMasters, according to AP. A move by a group of states to challenge the constitutionality of Obamacare could reinvigorate the efficacy of the 10th Amendment, which reserves to the states or the people all rights not specifically granted to the federal government.

Graham has been all over cable news today visibly angry about the vote-buying by Reid that secured the votes of Senators Mary Landrieu of Louisiana, Ben Nelson of Nebraska, and Bernie Sanders of Vermont, as well as possibly other senators as yet unknown.

DeMint has also been active, especially on the issue of the Reid amendment's provision seeking to bar future congresses from changing even a single word of Section 3403 on the Independent Medicare Advisory Board (IMAB).

The IMAB will become the federal health care ground zero under Obamacare if it becomes law. Ed Morrissey at Hot Air has a link to DeMint's floor speech on the issue and additional information, analyses, and links.

Nelson's deal with Reid has attracted the most attention because it exempts Nebraska from paying its share of Medicaid expenses in perpetuity. Medicaid expenditures are among the most expensive federal mandates on state governments, and the Obamacare bill will significantly increase costs for all other states that don't somehow wangle a similar deal.

It also raises a constitutional issue, which McMasters explained in a statement issued earlier today:

"The Nelson provision is unusual in that there is not cut off date or phase out. Many provisions in federal law have a sunset date -- say 2, 5, 10, or even 20 years-- but this provision will continue in perpetuity. Quite obviously, this issue raises very serious concerns about equity, tax fairness as well as the constitutionality of having federal tax levies and mandates that treat one state differently from all the others.

"If the Nelson provision is not unprecedented, I feel comfortable in saying it is an exceptionally rare occurrence. States generally are treated in a similar manner. In this case, Nebraska will be treated in a widely divergent manner than any other state.

"Beginning today, I have instructed my attorneys to begin looking into the constitutionality of this provision and exploring the options that may be available to South Carolina and other states to defend taxpayers should this provision ultimately become law."

My colleague David Freddoso wonders what might happen if the governors of states bordering Nebraska - Kansas, Colorado, Wyoming, Iowa, and Missouri - announce that they are no longer funding their Medicaid programs and encourage those needing Medicaid services to visit the Cornhusker state.