Yesterday, I wondered if the bribe Sen Ben Nelson received for his vote for ObamaCare was legal — a step beyond normal scuzzy horse-trading.
But this debacle has me wondering: Is inserting language into a "managers amendment" that exempts one state from the Medicaid increases that every other state will have to suck up even legal? I'm wondering if we'll see some kind of lawsuit challenging this bit of the "compromise."
The meme is picking up steam. John Steele Gordon writes today in a Contentions blog post titled "The Cornhusker Highjack and the Constitution":
Such bribery has a long history in Congress, but so far as I know (and I’d be delighted to hear of other, earlier instances), bribes always came in the form of highways, post offices, bridges to nowhere, and other infrastructure, or in offers of higher office for the person being bribed. They were not in the form of a special deal allowing a particular, not impoverished state to have a lower share of costs in an ongoing federal program. There are, of course, plenty of the old-fashioned sorts of bribes in this bill. Connecticut will get a new hospital at federal expense, for instance.
But is it constitutional for the federal government to give some states a better deal on a national program than it does other states? It is not obviously unconstitutional, as, say, having a lower federal income tax rate for Nebraska would be, since Art. I, Sec. 8, requires that “all Duties, Imposts and Excises shall be uniform throughout the United States.” However, one could argue that Nebraskans will be getting what amounts to a rebate on federal taxes through the back door of lower state taxes.
Gordon explores in more detail the particular constitutional questions at play here, and suggests that a state (rather than a citizen) would have the best shot at establishing standing to challenge a law that relieves only Nebraskans from the tax implications of the health care bill. It's an interesting post worth reading in full.