The fundamental unfairness of H.R. 3590 may also give rise to claims under the due process, equal protection, privileges and immunities clauses and other provisions of the Constitution. As a practical matter, the deal struck by the United States Senate on the "Nebraska Compromise" is a disadvantage to the citizens of 49 states. Every state's tax dollars, except Nebraska's, will be devoted to cost-sharing required by the bill, and will be therefore unavailable for other essential state programs. Only the citizens of Nebraska will be freed from this diminution in state resources for critical state services. Since the only basis for the Nebraska preference is arbitrary and unrelated to the substance of the legislation, it is unlikely that the difference would survive even minimal scrutiny.
We ask that Congress delete the Nebraska provision from the pending legislation, as we prefer to avoid litigation. Because this provision has serious implications for the country and the future of our nation's legislative process, we urge you to take appropriate steps to protect the Constitution and the rights of the citizens of our nation. We believe this issue is readily resolved by removing the provision in question from the bill, and we ask that you do so.
The letter was signed by attorneys general in Virginia, Alabama, Colorado, Florida, Idaho, Michigan, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington state.
While this is a good start, possibly an easy target, because, in my opinion, the blatant unconstitutionality of it. I am more encourage by what Attorney General-Elect Ken Cuccinelli has said:
Attorney General-elect Ken Cuccinelli said he has spoken to Mims and shares his concerns, although his legal interpretation might be slightly different. He said he does not believe that the federal government can force each state to create health-care exchanges or their own health-care markets.
Mims Letter on Health Care
States warn Congress of possible lawsuit over "Cornhusker Kickback"