South Carolina Attorney General Henry McMaster and top lawyers from seven other states said Tuesday they are looking into whether the federal health care reform bill is unconstitutional.
The move comes a day after U.S. Sens. Lindsey Graham and Jim DeMint, both South Carolina Republicans, asked McMaster, who is seeking the GOP nomination for governor, to look into whether a no-cost Medicaid deal given to Nebraska is legal.
U.S. Sen. Ben Nelson, a Nebraska Democrat, got a concession that will give his state a 100 percent federal reimbursement for Nebraska's Medicaid spending. The federal government will reimburse other states at 91 percent under the proposed bill.
Graham, DeMint and other Republicans argue South Carolina and other states should not be on the hook to pay for Nebraska's Medicaid patients.
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The state's top Democrat, U.S. House Majority Whip James Clyburn, said he thinks the complaints are politically motivated.
McMaster and Washington State Attorney General Mark McKenna, also a Republican, said they are investigating whether this deal sets a new legal precedent, one they can challenge and overturn. McMaster held a conference call with attorneys general from Texas, Alabama, North Dakota, Colorado and Michigan - all Republicans - to discuss collective legal action.
"States generally are treated in a similar manner," McMaster wrote. "In this case, Nebraska will be treated in a widely divergent manner than any other state."
The landmark legislation aimed at insuring millions of currently uninsured Americans while limiting insurance companies' ability to deny or limit health coverage is set to pass Congress with little Republican support.
"Rather than sitting here and carping about what Nelson got for Nebraska, I would say to my friends on the other side of the aisle: 'Let's get together and see what we can get for South Carolina,'" Clyburn said.
Clyburn said he would try to get South Carolina a sweeter deal - a 95 percent reimbursement rate for Medicaid, which he said would save the state millions of dollars. More than 700,000 poor South Carolinians are covered by Medicaid, and the health care reform bill could increase that number by 50 percent, according to one state estimate.
Clyburn, the third-highest-ranking member of the U.S. House, said South Carolina and other poor states deserve a higher reimbursement rate. The state has exceptional need given its comparatively poor health, high jobless rate and pockets of entrenched poverty.
State Rep. Chip Limehouse, R-Charleston, a top Republican on the S.C. House Ways and Means Committee, pointed out in a letter to the Obama administration that the S.C. Budget and Control Board cut state spending by $238 million last week. Consequently, the state's Department of Health and Human Services, which manages the state's Medicaid program, will take a $38 million hit and cannot afford to subsidize Nebraska, he said.
"It is imperative that we, too, receive the same consideration provided to Nebraska, in order for our state to continue to provide services to the Medicaid population," Limehouse said in his letter.
Clyburn warned that S.C. Republicans might be opening a legal battle that could eventually backfire. The state gets comparatively more federal benefits because of its poverty, he said.
The challenges to the health care overhaul are likely to continue until it passes early next year.
DeMint on Tuesday joined other conservatives in the U.S. Senate to force a vote today on the health care bill's constitutionality.
"Forcing every American to purchase a product is absolutely inconsistent with our Constitution and the freedoms our founding fathers hoped to protect," DeMint said.
Still, Clyburn is confident health care will pass early next year. He will play a role in the House-Senate compromise on the bill, and Clyburn said in the end the reform bill would save money.
He pointed to recent announcements about funding for community health care centers in Charleston and Beaufort. Both centers, Clyburn said, would end some costs insured patients pay for uninsured patients because the uninsured no longer would burden emergency rooms by seeking expensive, primary care there.
Clyburn said Gov. Mark Sanford's projection of hundreds of millions of dollars in new costs for South Carolina are based on federal numbers that don't account for such assumed savings, which Clyburn said would be "exponential."
"The governor understands that; he was up here with us for six years," Clyburn said.
Sanford, who last week urged senators to vote down the health care bill, said the bill would be a burden on states.
"I must say that for anyone to suggest that a nearly trillion dollar government takeover of health care that moves a sixth of the U.S. economy under bureaucrats' control will somehow result in substantive cost savings for the taxpayer borders on the ridiculous," Sanford said.