Law Prof: GOP State AGs' Objection To Health Bill Is 'Crazy Talk'

TPM:


The arguments of a group of Republican state attorneys general who are talking up a constitutional challenge to the "Cornhusker Kickback" provision of the health care bill are "strictly political" and do not have legal merit, a law professor tells TPMmuckraker.


"If a private individual brought the suit, the court might assess a fine for bringing a frivolous suit," says Timothy Jost, a health law specialist at the Washington and Lee University School of Law who favors the reform bill.


In the most specific explanation to date, DeMint told McClatchy that the provision would violate Article I, Section 9: "No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another."


But Jost says that when Article 1 Section 9 has been cited -- a rare occurrence -- "it has explicitly been used to deal with Congress trying to favor one port in the United States as opposed to some other port."


"Which port in Nebraska are they concerned about?" Jost asks. The clause, he says, "cannot conceivably have anything to do with Medicaid."


Jost notes that while the Constitution does require uniformity in taxes among the states, the Nebraska Medicaid provision is about spending, not taxation.
"There's no equivalent requirement that spending has to be uniform among the states -- and of course it isn't, it has never been, and never will be," he says.