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NEWS RELEASE Page 1 of 5

Troy KingAttorney General

FOR IMMEDIATE RELEASE For More Information, contactDecember 31, 2009 Joy Patterson (334) 242-7491

Suzanne Webb (334) 242-7351

Alabama State House 11 South Union Street Montgomery, AL 36130 (334) 242-7300

www.ago.state.al.us

STATEMENT BY ATTORNEY GENERAL TROY KING

ON SENATE HEALTHCARE BILLS CONSTITUTIONALITY

Not very long ago, legislation had to pass or fail based on its merits. If it was poor public

policy, the votes to secure its passage could not be found and it died. On the other hand, good

legislation could win passage on its merits alone. Those days seem to have passed. OnDecember 19, it was announced that the health care reform legislation making its way through

the United States Congress had picked up a key sixtieth vote that cleared the way for it to go to

a vote of the Senate the vote of Nebraska Senator Ben Nelson. Then the details of how that

vote was procured began to become public. Senator Nelson did not have an epiphany. Instead

his vote was brazenly and openly bought in a back room deal.

In response, on Tuesday, December 22, eight of my fellow attorneys general and I

participated in a conference call to discuss these developments. We agreed that, if the highest

ranking members of the United States Senate were unwilling to respect their oaths to protect

and defend the Constitution as they considered one of the most important public policy issues ingenerations, we would.

On Christmas Eve, December 24, Senator Nelson delivered an unwanted Christmas

present to America when he gave his vote to its purchaser United States Senate Majority

Leader Harry Reid and the dirty deal was done. Senator Nelsons price was high a reported

one hundred million dollars in new Medicaid expense exemptions for Nebraska forever. This

high price was acceptable and agreed to by Senator Reid and the Democratic Leadership

because they had no problem forcing the taxpayers of Alabama and 48 other states to pick up

the tab for their vote buying.

Alabamians should not be forced to subsidize another states Medicaid program,

particularly when our own Medicaid program is on financial life-support. Alabamas Medicaid

recipients our poor, our elderly, our children, our disabled should not be forced to sacrifice

their Medicaid services in order for another state to keep theirs. It is ironic that, by doing so

resources available to provide health care to Alabamians could have to be reduced. If that

happened, Alabamians could lose existing health care benefits in the rush to provide universal

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NEWS RELEASE Page 2 of 5Attorney General Troy King

Alabama State House 11 South Union Street Montgomery, AL 36130 (334) 242-7300

www.ago.state.al.us

health care to others. My fellow attorneys general and I are committed to protecting our poores

and neediest citizens from their own government.

On Thursday, December 24, Governor Riley voiced his support of my position and asked

that I expand my investigation of this matter to include other possible improper deal-making

connected with the passage of the Senate health care bill. I have assured him that those issueswere already under review and were being thoroughly scrutinized by my Office and the other

Attorneys Generals Offices.

On Tuesday, December 29, one week after the first conference call, our Attorneys

General group reconvened in another conference call. After a week of researching and

reviewing this issue we were all in agreement that the Senates action likely violated some of

the United States Constitutions most important protections. In our view, any such provisions

must either be removed or challenged.

Yesterday, December 30, a letter signed by 13 Attorneys General was sent to Speaker ofthe House Nancy Pelosi and Senate Majority Leader Harry Reid, voicing our concerns. We did

not do this because we are for or against the health care plan currently under review. We did it

because we are unequivocally FOR the United States Constitution and believe it must be

respected at all times and defended when necessary. Now is such a time.

Attachment: Pelosi-Reid Letter

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December 30, 2009

The Honorable Nancy PelosiSpeaker, United States House of Representatives

Washington, DC 20515

The Honorable Harry Reid

Majority Leader, United States Senate

Washington, DC 20510

The undersigned state attorneys general, in response to numerous inquiries, write toexpress our grave concern with the Senate version of the Patient Protection and

Affordable Care Act (H.R. 3590). The current iteration of the bill contains a provision

that affords special treatment to the state of Nebraska under the federal Medicaidprogram. We believe this provision is constitutionally flawed. As chief legal officers of

our states we are contemplating a legal challenge to this provision and we ask you to take

action to render this challenge unnecessary by striking that provision.

It has been reported that Nebraska Senator Ben Nelsons vote, for H.R. 3590, was

secured only after striking a deal that the federal government would bear the cost of

newly eligible Nebraska Medicaid enrollees. In marked contrast all other states wouldnot be similarly treated, and instead would be required to allocate substantial sums,

potentially totaling billions of dollars, to accommodate H.R. 3590s new Medicaidmandates. In addition to violating the most basic and universally held notions of what is

fair and just, we also believe this provision of H.R. 3590 is inconsistent with protections

afforded by the United States Constitution against arbitrary legislation.

InHelvering v. Davis, 301 U.S 619, 640 (1937), the United States Supreme Court warned

that Congress does not possess the right under the Spending Power to demonstrate a

"display of arbitrary power." Congressional spending cannot be arbitrary and capricious.

The spending power of Congress includes authority to accomplish policy objectives by

conditioning receipt of federal funds on compliance with statutory directives, as in theMedicaid program. However, the power is not unlimited and must be in pursuit of the

general welfare. South Dakota v. Dole, 483 U.S. 203, 207 (1987). InDole theSupreme Court stated, that conditions on federal grants might be illegitimate if they are

unrelated to the federal interest in particular national projects or programs. Id. at 207. It

seems axiomatic that the federal interest in H.R. 3590 is not simply requiring universalhealth care, but also ensuring that the states share with the federal government the cost of

providing such care to their citizens. This federal interest is evident from the fact this

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legislation would requireevery state, except Nebraska, to shoulder its fair share of theincreased Medicaid costs the bill will generate. The provision of the bill that relieves a

single state from this cost-sharing program appears to be not only unrelated, but also

antithetical to the legitimate federal interests in the bill.

The fundamental unfairness of H.R. 3590 may also give rise to claims under the dueprocess, equal protection, privileges and immunities clauses and other provisions of theConstitution. As a practical matter, the deal struck by the United States Senate on the

Nebraska Compromise is a disadvantage to the citizens of 49 states. Every states tax

dollars, except Nebraskas, will be devoted to cost-sharing required by the bill, and will

be therefore unavailable for other essential state programs. Only the citizens of Nebraskawill be freed from this diminution in state resources for critical state services. Since the

only basis for the Nebraska preference is arbitrary and unrelated to the substance of the

legislation, it is unlikely that the difference would survive even minimal scrutiny.

We ask that Congress delete the Nebraska provision from the pending legislation, as we

prefer to avoid litigation. Because this provision has serious implications for the countryand the future of our nations legislative process, we urge you to take appropriate steps to

protect the Constitution and the rights of the citizens of our nation. We believe this issue

is readily resolved by removing the provision in question from the bill, and we ask that

you do so.

By singling out the particular provision relating to special treatment of Nebraska, we do

not suggest there are no other legal or constitutional issues in the proposed health carelegislation.

Please let us know if we can be of assistance as you consider this matter.

Sincerely,

Henry McMaster

Attorney General, South Carolina

Rob McKenna

Attorney General, Washington

Mike Cox

Attorney General, Michigan

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Greg Abbott

Attorney General, Texas

John Suthers

Attorney General, Colorado

Troy King

Attorney General, Alabama

Wayne StenehjemAttorney General, North Dakota

Bill Mims

Attorney General, Virginia

Tom Corbett

Attorney General, Pennsylvania

Mark Shurtleff

Attorney General, Utah

Bill McCollum

Attorney General, Florida

Lawrence Wasden

Attorney General, Idaho

Marty Jackley

Attorney General, South Dakota