States Plan Legal Challenge To New Health Law

A dozen attorneys general say they will file lawsuits against the federal government as soon as President Obama signs the health care bill into law. Guest host Allison Keyes talks with South Carolina's Attorney General Henry McMaster, a Republican, about why he considers the health care bill unconstitutional. Then we go to reporter Yvonne Wenger, who covers the South Carolina legislature for The Post and Courier, for analysis.

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ALLISON KEYES, host:

I'm Allison Keyes, and this is TELL ME MORE from NPR News. Michel Martin is away.

Coming up, we'll speak to a financial planner who breaks down just what the health care overhaul means to your wallet right now, and the cost and savings you'll see down the line in coming years. That's in just a few minutes.

But first, there's a group of Americans that are awaiting the very moment today that President Obama signs a health care legislation passed by Congress over the weekend into law, not because they support the overhaul, but so they can mount a legal challenge to the constitutionality of the health care plan. Attorneys general from up to a dozen states plan to file the lawsuit in a district court in Florida before the day is over. One of them is Henry McMaster who was the attorney general of South Carolina and a Republican.

Just now, though, we're going to get analysis over how that battle is playing out in South Carolina from Yvonne Wenger. She's the state House reporter for The Post and Courier, South Carolina's largest newspaper. Welcome, Yvonne.

Ms. YVONNE WENGER (State House Reporter, The Post and Courier): Thanks for having me, Allison.

KEYES: As we were just saying, Attorney General McMaster is planning on filing a lawsuit in the future. What kind of response is he getting from people in the Palmetto State?

Ms. WENGER: Id say it's a little bit too early to know exactly how McMaster's stance will be received. So far, though, it seems like his challenges to the health care legislation have been mixed. There's definitely a lot of people in the state that are proud to see him standing up to, you know, big government. There are many others, though, who see him as an opportunist who is just looking for some publicity for his gubernatorial run.

In the end, though, I'd say that South Carolina is one of the most conservative states in the country. And McMaster definitely represents our base, and as such, he's a front runner for governor.

KEYES: Any idea how big a deal the constitutional challenge is? I wonder whether it has any kind of chance of succeeding. I know it's not filed yet, but what are you feeling?

Ms. WENGER: Well, you know, in conversations with McMaster, he has a, you know, pretty savvy, legal mind. He feels like there is a real solid constitutional challenge based on the fact that the federal government is trying to mandate that Americans do something - in this case - purchase health care insurance. And so, I don't think it's something that's going to be dismissed immediately by the court. I think that we're in for, you know, some interesting legal arguments ahead.

KEYES: Speaking of interesting legal arguments, we're joined now by Attorney General McMaster. Thanks for joining us.

Mr. HENRY McMASTER (Attorney General, South Carolina): Oh, I'm happy to be with you.

KEYES: Can you break down for us what exactly is unconstitutional about the health care bill?

Mr. McMASTER: Well, the individual mandate that the lady was referring to is what the is the target of our lawsuit. And as she described accurately, the idea is that the constitution does give the Congress power to pass a lot of laws in a lot of areas. But those are limited areas. One of them of course is maintain the public defense. One is to regulate interstate commerce, another is to have a uniform system of weights and measures, another is to set up a national court system, which we have in the federal courts, and there are some other things.

But the 10th Amendment says that those powers are not expressly given to the Congress or reserved to the people into the states. So, the question is, where does the Congress believe that it gets the power to tell every citizen that they must go do something that they don't want to do, that is, to actually buy something, buy a product, buy health insurance policy. And we believe believe strongly that it's not allowed. It's not interstate commerce. The commerce clause is very expansive and relates to a lot of things, but there is a limit to it.

KEYES: So, they're not allowed to do this because it's framed as a tax bill, Congress, I mean?

Mr. McMASTER: Well, that is another part of our attack, that it is a direct tax. And as such, it must be apportioned among states and cannot be placed on an individual. But the broader attack is that there is no power in the Congress through the commerce clause or anywhere else to require an individual to go out and purchase health insurance. It is outside of interstate commerce.

Now, the Congress can regulate certain things that are flowing in interstate commerce, but this is not interstate commerce. If you have an individual who doesn't want to buy health insurance, they're in interstate commerce or any other kind of commerce to require them to get up and go out and buy health insurance is something that's not allowed or to buy anything else. To buy Ford instead of Chevrolet, or to buy a new coat or anything else is just not allowed.

So, we see it we see this as an attack on the sovereignty of the states and the liberty of the people. And that's why there are, I think there are 12 of us that are have joined together and soon should be filing our case in the federal court in Florida.

KEYES: Are you all filing this together like a class action suit or is it 12 separate suits?

Mr. McMASTER: It's one suit. It's not a class action suit because we are representing our respective states. But there will be at least 12 of us and we'll probably be joined by others as time goes by through amendments.

KEYES: So, how, sorry, continue your answer, sorry.

Mr. McMASTER: And that's what we're doing, and we'll be filing in federal court in Florida challenging that. And this is not a challenge to the policy of the act of the law, whether it's a good idea or a bad idea or costs too much or is unsustainable financially, it's not doesn't question that, it simply questions the core constitutional question. And it's a very, very important question of whether the Congress can go this far in exercising its constitutional power. We say that the answer is an emphatic no.

KEYES: Mr. McMaster, hang on for me just a moment. Yvonne, I wonder whether people in South Carolina are seeing this move as a genuine legal issue or whether it is an attempt for Mr. McMaster to boost himself in the gubernatorial campaign.

Ms. WENGER: People in the state are on both ends of the spectrum. You know, judging by comments that our readers post and by Twitter updates and things, there's people who definitely think that, including the state Democratic Party who said that McMaster mastered the use of frivolous lawsuits as a political tool, that he's using taxpayer dollars to advance his gubernatorial campaign.

When I talked to Mr. McMaster yesterday, he said that while this case is very high profile and has extremely high consequences for the country, it's not expected to be a really costly suit because the dispute of facts, there's not much dispute of the facts. There's a constitutional question. And many in the state see the Constitution as the most sacred thing that we have in our country that deserves, you know, every effort to protect it. And they're, you know, strongly behind McMaster. But, of course, there's other folks who think that he's taking advantage of his political position.

KEYES: Mr. McMaster, how do you respond to those allegations that this is more politics than policy?

Mr. McMASTER: Well, all the politics is in Washington. We saw it with the Cornhusker Kickback. If that wasn't politics gone wild, I've never seen it. That was just off the scale. And there were other things in there, too, concerning the Louisiana Purchase, they called it, and a special deal for Florida. I mean, that was just politics run wild. And speaking of politics, I don't know how many promises were made behind the scenes getting the support for the passage that took place in the House.

But all that is aside from the fact that this is an unconstitutional attack on the state sovereignty and the liberty of the people. Bringing this lawsuit is the right thing to do. We have 13, as of this moment, have 13 state attorneys general who have joined together in this single lawsuit that we're filing in the northern district of Florida. There will other attorneys general that will be filing. I know Virginia is filing today and there are others that'll be filing as well.

I think people can say whatever they want to say. But when you have this many state attorneys general, as well as other people who will certainly be filing, I think it raises a very legitimate question as to whether this new law will be constitutional.

KEYES: Let me play a clip for you guys. It's from House Majority Whip James Clyburn of your state, of course, South Carolina. Here's what he said just a few minutes after the bill passed on Sunday.

Representative JAMES CLYBURN (Democrat, South Carolina): I consider this to be the civil rights act of the 21st century because I do believe that this is the one fundamental right that this country had been wrestling with now for almost 100 years. I think tonight we took a giant step toward the establishment of a more perfect union.

KEYES: Mr. McMaster, what do you think of his assessment that the health care bill is the civil rights act of the 21st century?

Mr. McMASTER: Well, with all due respect to my good friend, Jim Clyburn, whom I've known and respected for years, I disagree. Of course, I believe that that's the way he sees it, but I think that there are many other better ways to accomplish the purpose that we are seeking to accomplish concerning health care and public health in the United States.

But I see this, again, as an attack on the sovereignty of the states and the liberty of the people.

One thing that we have to do when we're passing laws in Congress is we have to go by the rules. The rules are laid out in the Constitution, and as long as we go by those rules, we can debate the policy of whether it's a good or a bad law, that is, or whether the policy of it is good or bad or helpful or could be better. But it always has to be consistent and in accordance with the power granted to the Congress and the Constitution.

This law that attempts to - or will require every individual out there to go out and buy health insurance is something that is off that scale in terms of its unconstitutionality. It is not allowed by the Constitution. And whether one agrees with the policy of the law or doesn't agree with the policy of the law, one must be concerned when the Congress is passing laws that, in the view of the 13, at least 13 of us state attorneys general and others, is unconstitutional.

KEYES: Okay, wait, Mr. McMaster, I've got to interrupt you one second 'cause I need to bring Yvonne in for a second. I want to know, Yvonne, what do people in your state think about Mr. Clyburn's role in getting this passed? Are they equally proud of him?

Ms. WENGER: Oh, I would say so, for sure. The conversation here is much the same as it is elsewhere in the country versus - this being a right versus a privilege. In South Carolina, this health care legislation could mean coverage for an additional 500,000 South Carolinians. We're a small state made up of only four million citizens.

And so, you know, has not heard many others describe this as, you know, equally as important as the civil rights movement, but definitely there are people who think that South Carolina being a poor state is going to benefit more so than other states that are wealthier, like, say, Connecticut or something, that this legislation will help South Carolina rise above its position currently.

KEYES: I have to end this, you guys, we're out of time, but thank you much, both for joining us. Henry McMaster is the attorney general of South Carolina and a Republican. He joined us on the line from the South Carolina capital of Columbia. And Yvonne - Wenger is the state house reporter covering politics for South Carolina's Post and Courier. She was kind enough to join us from her office also in Columbia. Thank you both for a spirited discussion.

Ms. WENGER: Thank you.

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