RENEE MONTAGNE, host:
It's MORNING EDITION from NPR News. Steve Inskeep is spending this Christmas Day with his family. I'm Renee Montagne.
And senators passed a health care overhaul bill yesterday just in time to make it home for Christmas. Now the bill faces another challenge: a group of Republican attorneys general is saying the legislation could be unconstitutional, and they say they are considering legal action should it become law.
NPR's Debbie Elliott reports.
DEBBIE ELLIOTT: At least 10 top state prosecutors are lining up to challenge the Democratic health care bill. South Carolina Attorney General Henry McMaster is leading the charge. He questions the legality of a compromise that exempts Nebraska from paying for an expansion of Medicaid.
Mr. HENRY MCMASTER (Attorney General, South Carolina): Why is it that Nebraska pays no taxes, pays no money, as a state while the other 49 states do?
ELLIOTT: McMaster, a Republican candidate for governor of South Carolina, has been talking with his Republican colleagues in at least nine other states, including Alabama, Colorado, Michigan, Pennsylvania and Washington.
Mr. MCMASTER: We are concerned that this Nebraska concession actually violates the constitutional prohibition against arbitrary and capricious spending.
ELLIOTT: South Carolina's Republican senators, Lindsey Graham and Jim DeMint, asked McMaster to investigate, complaining that Democratic leaders gave Nebraska a $45 million-a-year break because Senator Ben Nelson's vote was crucial to keep the Senate health care bill alive. Nelson defends the deal.
Senator BEN NELSON (Democrat, Nebraska): This wasn't a money grab for the state of Nebraska. This was a recognition that we have an underfunded federal mandate that will shift the cost of that program to the states in 2017, a long time to resolve it. This has now opened the door. Many of my colleagues have already started talking about that they want to get the same thing that we had. So it's a fair deal, not a special deal.
ELLIOTT: Instead of suing, Nelson suggests that South Carolina lawmakers should work their own deal.
Sen. NELSON: Look, if South Carolina doesn't want to get out from under that mandate, they don't have to. But if they want to, then they ought to take the same action and push for the same thing that we've got for Nebraska. I've talked to three or four of my colleagues who are working to do that on their own for their states.
ELLIOTT: That's part of the legislative process, says Senate Democratic Whip Dick Durbin of Illinois.
Senator DICK DURBIN (Democrat, Illinois): It's not unusual. It has happened before and to say that it rises to some constitutional level I think is exaggerating it.
ELLIOTT: But South Carolina's Lindsey Graham says the Constitution requires uniformity in taxation for good reason.
Senator LINDSEY GRAHAM (Republican, South Carolina): The gang-up effect - a state falls out of favor with the colleagues up here, so let's hit them with a tax. We don't hit anybody else. Now, this is the reverse. This is one state basically being able to benefit because their vote was in play. The Founding Fathers understood that if you don't have some uniformity concepts, the passions of the moment can overcome reason.
ELLIOTT: Not all state attorneys general are embracing the idea of a lawsuit. Mississippi's Jim Hood, a Democrat, says it's a tough argument in so-called beneficiary states, where federal spending exceeds what citizens pay in federal income taxes.
Mr. JIM HOOD (Attorney General, Mississippi): Other states are subsidizing Mississippi now. We get more subsidies on Medicaid than any other state in the nation. So certainly for states like us it wouldn't be good to take position that, you know, everybody ought to be equal. So I haven't seen their legal argument, but I just don't think it would hold water because of that comparison.
ELLIOTT: South Carolina Attorney General Henry McMaster says it's one thing to divide federal funds according to the greatest need, but he says that's not what's happening in the health care bill.
Mr. MCMASTER: This is based on nothing but a culture of corruption to get somebody's vote.
ELLIOTT: McMaster acknowledges there's nothing to challenge yet, but he says the attorneys general will be ready should Nebraska's favorable treatment become law.
Debbie Elliott, NPR News.
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