GOP may sue over health care bill's 'Nebraska compromise'

Fort Worth Star-TelegramDecember 23, 2009 

AUSTIN — Texas Attorney General Greg Abbott said Tuesday that he and top prosecutors in a half-dozen other states plan to challenge the constitutionality of a health care compromise that exempts Nebraska from paying billions in Medicaid expansion costs, forcing other states to shoulder a bigger burden for the low-income insurance program.

Abbott, a Republican, announced the plan just hours after filing to seek re-election to a third four-year term as the state's top legal officer. Abbott's decision prompted his friend and former deputy Ted Cruz to scrap what had been a high-profile bid to succeed him.

The Texas attorney general said he will join with Republican counterparts in up to six other states to challenge what they call the "Nebraska Compromise," the political deal that secured Nebraska Sen. Ben Nelson's crucial vote on a massive health care package in exchange for concessions for his state.

One of the biggest gains for Nebraska requires the federal government to indefinitely pick up the full share of Nebraska’s cost for expanding Medicaid, a federal-state program that provides medical coverage for low-income Americans.

Other states will continue to finance the expansion. Sen. John Cornyn, R-Texas, said the Lone Star State's share could be up to $20 billion over 10 years.

"The Nebraska Compromise, which permanently exempts Nebraska from paying Medicaid costs that Texas and all other 49 states must pay, may violate the United States Constitution — as well as other provisions of federal law," said Abbott, denouncing the provision as an "unprecedented and highly questionable backroom deal."

Abbott said his office will "explore all available avenues to challenge and overturn this legally problematic provision. Our democratic system of government depends upon transparency and openness — this backroom deal goes too far and must be challenged because Texas deserves better."

Nelson’s commitment assured Democrats of 60 votes to overcome a threatened Republican filibuster and move the healthcare package toward likely passage by the Senate this week. Nelson, who had expressed deep misgivings about aspects of the bill, had withheld his support until he and Senate leaders reached the compromise over fierce Republican objections.

In a telephone interview, Abbott said he and his counterparts have been discussing their legal options but probably won’t act until after the bill passes.

"It’s going to be Texas taxpayers who are going to be paying to make up what Nebraska doesn’t pay," he said.

South Carolina Attorney General Henry McMaster said the legal action in his state was requested by Republican Sens. Lindsey Graham and Jim DeMint, according to The Associated Press.

"We have serious concerns about the constitutionality of this Nebraska compromise as it results in special treatment for only one state in the nation at the expense of the other 49," Graham and DeMint said in a letter to McMaster. "Nebraska does not have to come up with a single dollar."

Nebraska wasn’t alone in getting Medicaid breaks. Vermont, Louisiana and Massachusetts also got help with their programs, according to the AP.

Abbott said resistance to intrusive federal mandates will be among his priorities for a third term. Other priorities, he said, include toughening consumer protections, increasing safeguards against sexual predators and improving the juvenile justice system by focusing on education.

Abbott was the latest Republican officeholder to opt for a stay-in-place strategy in the 2010 elections after Sen. Kay Bailey Hutchison delayed her plans to resign from the Senate while she challenges Gov. Rick Perry in the Republican primary.

Hutchison’s decision to stay in the Senate through the March 2 primary froze the aspirations of scores of Republican politicians looking for new opportunities, expecting that a Hutchison resignation would create a chain reaction of openings before the Jan. 4 political filing deadline.

Abbott was originally considering a run for lieutenant governor on the prospect that Republican incumbent David Dewhurst might seek Hutchison’s seat if she resigned before the close of the monthlong filing period. But Dewhurst instead announced for re-election after Hutchison delayed her plans, leaving Abbott little realistic choice but to seek re-election or step aside.

Dewhurst might ultimately be appointed to the Senate as an interim replacement, or win a special election, in the event of a Hutchison resignation after the primary. The State Republican Executive Committee could conceivably name Abbott as the Republican nominee as lieutenant governor, but Abbott said Tuesday that he did not want to discuss hypotheticals.

Cruz, who served as solicitor general under Dewhurst, said he will withdraw from the attorney general’s race and "enthusiastically" back Abbott.

But, in a letter to supporters, he held out the possibility that opportunities would reopen if Hutchison resigns after the primary, as she has announced.

Houston attorney Barbara Ann Radnofsky is seeking the Democratic nomination for the post.

"The voters will have a clear choice in November between a woman who wants to be the people’s lawyer and a man who wants to move on to something else," she said in response to Abbott’s announcement.

"I’m prepared to safeguard all Texans from fraud and crimes whether committed with a computer or a tire iron."

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