Thursday, January 7, 2010

Greg Zoeller to Review Constitutionality of ObamaCare

At the request of Senator Lugar, Indiana Attorney General Greg Zoeller is going to have a look:

INDIANAPOLIS – At the request of Senator Richard Lugar, Indiana Attorney General Greg Zoeller will conduct a legal analysis of the constitutionality of provisions of the federal healthcare bill regulating states that the U.S. Senate recently passed.

Under a state law, Indiana Code 4-6-8-2, the Indiana Attorney General's Office has the authority to review existing or proposed federal legislation for any of Indiana's U.S. senators or U.S. representatives at their request. Zoeller has received requests from Senator Lugar and other members of Congress asking the Attorney General's Office to perform legal research and analysis on particular provisions of Senate Amendment 2786 to the Patient Protection Affordable Care Act (H.R. 3590), and report back to them.

Zoeller said attorneys in his office will review questions of the bill's constitutionality and its impact upon state government agencies if the U.S. Senate version of the bill were to pass as written. He plans to provide a report to the congressional delegation and their legislative staffs in time for House-Senate conference-committee negotiations in Congress.

Among other reasons, the version of the bill that passed in the U.S. Senate on Dec. 24 has been controversial because of the so-called "Nebraska compromise," which provides Nebraska, but not other states, with federal funding for expanded obligations that all states participating in Medicaid (including Indiana) would have to undertake. According to an Indiana Family and Social Services Administration (FSSA) analysis, the Senate version of the bill would cost Indiana an additional $2.4 billion over the next 10 years. That analysis, performed by the state's actuary Milliman Inc., projected a 50 percent expansion of the Medicaid program in Indiana, or 500,000 new Medicaid beneficiaries. The same actuarial study projected a loss to Indiana of $75 million in pharmaceutical rebates each year for the next 10 years, as rebate savings are diverted from state governments to the federal government.

Zoeller said that based on Lugar's request for advice, his office will review whether the provision funding Nebraska's expanded Medicaid obligations -- but not those of other states -- would be constitutionally valid.

Zoeller noted that the request to provide a legal review of the federal legislation will be given top priority by the Attorney General's Office, in consultation with state agencies whom Zoeller represents.

Although Zoeller's report will be directly in response to Senator Lugar's request, Zoeller noted that he received similar inquiries from U.S. Rep. Dan Burton and U.S. Rep. Mike Pence. A number of state legislators and Hoosier constituents also have sent letters asking the Attorney General to review the Senate amendment, although under the state law Zoeller is to prepare such a report specifically for members of Congress. As long as his review is under way, Zoeller will not be involved in any other review or possible legal challenge to the federal legislation that is being explored in other states.

"Shortly after taking office, I met in Washington, D.C., with members of Indiana's congressional delegation following a letter that notified them of this authority the state Attorney General has to perform legislative research and analysis. This little-known provision in state law was intended for a circumstance such as this, where proposed federal legislation could have a sweeping impact on state government," Zoeller said. "I am pleased to be able to assist in this matter through the authority of that statute."

Presumably, this review could be a prelude to joining some other state attorneys general in challenging the constitutionality of the legislation (assuming that the Indiana Attorney General even has such authority; it is constitutionally a much weaker office than the AG offices in many other states).