AG says challenges to health care law unconstitutional

Tuesday, April 6, 2010 at 12:10pm

An opinion issued Tuesday by Tennessee Attorney General Bob Cooper said legislation introduced to block health care reform legislation, commonly derided as "Obamacare," is unconstitutional. 

Cooper will not be joining 14 other state attorneys general in lawsuits to block the controversial health care law passed recently by Congress. It also means tea party protestors aren't likely to stop coming by his office and shouting anytime soon.

The opinion (read it here) states, "A court would likely determine that SB 3498/HB 3433 and HJR 745 are preempted by conflicting provisions of the federal Patient Protection and Affordable Care Act." In laymans terms, that means it's unconstitutional.

Furthermore, the opinion states, "Congressional power to preempt state law arises from the Supremacy Clause of the United States Constitution. The Supremacy Clause provides that the laws of the United States 'shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.' "

States whose attorneys general have a differing opinion and are filing challenges include Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington State, Idaho and South Dakota. The suing attorneys general are all Republicans except James "Buddy" Caldwell of Louisiana, who is a Democrat.

In contrast, pro-health care reform attorneys general are going on the offensive in places like Oregon and Ohio, while the AGs in Georgia and Kentucky have refused requests from their governors to fight the legislation. 

7 Comments on this post:

By: AmyLiorate on 4/6/10 at 11:29

The U.S. Constitution is the "supreme law of the land".

The laws that the House and Senate make are treated as such as long as they aren't in conflict with the USC or the constitution of a state. However it is not possible for a new law from D.C. to invalidate a state's right.

This "reform" bill seems to be in conflict with the USC and so, like any previous law passed through the House and Senate that didn't mesh with the USC, it bill should be struck down. The state seems to have the proper standing and should do so.

HOW is the reform law unconstitutional you say? For one thing it's supporters say that it's a "tax" and that is what makes legitimate the forcing of people to purchase something (buy insurance so you get a tax break). But all tax bills are supposed to originate in the House, not the Senate as this one did, according to the USC.

You ask, so what, it's not Tennessee's problem. Governor Bredesen has arguably studied the health plan in detail and because of Tenncare mess he's on top of the issue in our state. He said this "reform" tax is going to burden the state by a billion dollars.

AG Cooper should not be trying to make excuses along party lines. He should be doing the State of Tennessee and it's citizens the service they deserve - and that is to help strike this bureaucratic behemoth of financial ruin as soon as possible. Crush it before it costs Tennessean hundreds of millions.

It would be the responsible thing to do.

By: Kosh III on 4/6/10 at 12:05

" He said this "reform" tax is going to burden the state by a billion dollars. "

Currently the feds rememburse TN for 50% of TennCareMedicaid costs. Under this new plan, the feds will begin paying for 90% and over the next few years the rate will drop to 80%. so we come out ahead.

By: cmarcus45 on 4/6/10 at 1:15

Another lawyer's opinion -- I agree that the Supremacy Clause would render unconstitutional any state action to block the federal legislation. Separate from that, however, are the lawsuits on behalf of states to challenge the federal legislation under the 10th Amendment, which reserves states' power over those things not specifically addressed by the Constitution. I believe the state-led challenges in this regard have a leg to stand on. This article and/or the Attorney General seems to be confusing the state legislature's attempt to pass legislation in the face of the Supremacy Clause with the 10th Amendment challenges mounted by other states (and now passed up by Tennessee).

By: Dragon on 4/6/10 at 2:17

"Section 2. That government being instituted for the common benefit, the
doctrine of nonresistance against arbitrary power and oppression is absurd,
slavish, and destructive of the good and happiness of mankind."

Sounds constitutional to me.

Oh, you mean the US Constitution.

By: govskeptic on 4/6/10 at 3:15

Atty Gen Cooper being selected by the members of the Tenn.
Supreme Court (Only state in the nation that selects this officer
in this manner) renders opinions, as his predesesors have, that
are all over the place in their logic and reasoning. Why oh why
do we, the citizens, , continue to let this office continue to be
selected in this manner and with so little power as well? It's
truly time to amend our state constitution to make this an
elected office instead of all the other sometimes silly discussions that come up for amendment!

By: AmyLiorate on 4/6/10 at 3:28

Maybe Kosh3 knows a lot more about the issue than I do... but I'm not sure that we will "come out ahead" overall.

Does your figure account for all the new people added on to Tenncare because of the "reform"?

Did you factor in the Medicare part D group? That group that currently has their Rx paid for by private insurance but will certainly be dumped because the Democrats have yanked that tax break out. I read that those prescriptions covered under Part D cost twice as much under the same government plan.

By: TharonChandler on 4/8/10 at 1:03

Tharon Chandler Thu, Apr 8, 2010 at 11:18 AM
To:,, associates
Cc:,, journal , "rep.jim.cooper" , aparks,,,,

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