Legislators Call for Litigation; Edmondson “Reviewing”

Monday, as nearly one-third of the state Legislature stood with them, Senate President Pro Tempore Glenn Coffee and House Speaker Chris Benge, both Republicans, urged Oklahoma Attorney General Drew Edmondson, a Democrat, to sue the U.S. government and challenge the legality of federal health care legislation passed last night. 

In response to a request for comment submitted by this reporter, and received via email about 30 minutes after the legislative event, Attorney General Edmondson responded at least in part to the legislators and other Oklahomans who have called on him to act.

Edmondson said, “More than two months ago I told Congress that Oklahoma and several other states have serious concerns with the federal health care bill.  Our office joined other attorneys general offices from around the country on a conference call just yesterday to discuss ideas and legal strategies to protect our states from unwanted federal intrusion that potentially places us at a disadvantage. We are reviewing applicable statutes and case law to determine the best course of action.”

Edmondson continued,  “We will continue to share information with our colleagues as we monitor the progress of the reconciliation bill being considered by the Senate. Should the final product contain constitutional infirmities that adversely impact the states and are not otherwise being addressed, we will consider appropriate legal action.”

At least 48 Republican state legislators from both the House and Senate joined the two legislative leaders at a packed joint press conference in the state Senate Lounge early in the afternoon.  Sketching objections to the federal bill, Sen. Coffee said, “I don’t know where to begin. When he was president, Bill Clinton announced, ‘the era of big government is over.’ Last night, President Barack Obama and the Democratic majority in Congress announced the era of big government is back, and with a vengeance.”

Coffee said the new law would take money from the social security system to pay for health care, and that it amounted to “an attack on senior citizens in Oklahoma.”  Drawing on prior legislative staff analyses, the two leaders estimated the measure will cost Oklahoma more than a billion dollars over the next decade.  Coffee said the estimate was based on a fiscal analysis prepared at the request of the state congressional delegation this winter.

Both men praised Oklahomans in Congress for unanimously opposing the federal legislation, including U.S. Rep. Dan Boren, a Democrat.  They also noted that Edmondson had moved against the “Cornhusker Kickback” last winter, and said they hoped that might hint at his action in the new circumstances.

In response to a question from this reporter, Coffee said he had not spoken with Edmondson.  Benge and Edmondson, responding to veteran capitol reporter Frosty Troy, said no decision would be made on use of outside counsel to bring potential litigation if Edmondson declines to act.  Coffee explained, “The attorney general has clear authority to act, and we hope he will.” He added legislators would “explore options” to bring legal action if Edmondson demurs.

In comments to reporters, Speaker Benge said he was concerned new federal provisions could spell the end of Insure Oklahoma, a program providing affordable insurance for those seeking to purchase and control their own health care.
Initial criticism of the federal law is underscoring provisions of Article I, section 8 of the U.S. Constitution and its enumerated (and limited) powers.  One reporter asked if Article VI, providing for supremacy of federal law, offset the Article I, section 8 contentions.  Coffee replied that a law cannot violate the Constitution itself in order to uphold federal supremacy.

Assailing what he called “The Democrat Jobs Elimination Bill of 2010,” Coffee said the measure will lead to a trillion dollars in new taxes on American families.  In a joint letter to Attorney General Drew Edmondson, released at their press conference, Coffee and Benge said, “The people of our state don’t want it.  The taxpayers can’t afford it.”

Coffee characterized “the process that has occurred” as “an insult to our representative Republic” threatening prosperity and freedom.  Benge said the new law amounted to “unprecedented overreaching by the federal government that will forever change the democratic nature of our country.”

Already, according to Benge and Coffee, 38 states are resisting the bill, intending to file legislation to exempt states from the law in one way or another. At least five measures pending in the state Legislature are designed to limit the reach of the new law.  

Senate Joint Resolution 62 passed the Senate on Feb. 24 and is pending before the House. That measure raises a cluster of constitutional issues concerning the new federal law.

Aside from financial concerns about the expense of the new federal law, Coffee and Benge said provisions that are “likely unconstitutional” include: “requiring ALL Americans to purchase health insurance and fining or jailing them if they don’t; special arrangements for states contained in the reconciled version of the legislation (e.g., Louisiana and Florida) are inconsistent with the protections afforded by the Constitution against arbitrary legislation; and the requirement that states establish benefit exchanges runs counter to constitutional limitations that forbid the federal government from commandeering any branch of state government to administer a federal program.”