The Legislature is moving ahead with plans to give Gov. Jan Brewer and lawmakers the authority to sue the federal government over the health care law, even though lawmakers pushing for a lawsuit were unable to fully explain the legal basis for a court challenge.
Both the House and the Senate approved the two special session measures at the committee level on March 30. The Senate sent the measures through the Judiciary Committee, while the House passed them through the Appropriations Committee. All of the votes were along partisan lines: Republicans voted to approve the measures, and Democrats opposed them.
The Legislature is set to pass the measures – S1001 and SCM1001 or their identical House bills, H2002 and HCM2001 – and send them to the Governor’s Office tomorrow. Brewer, who called for the special session on March 29, is expected to sign them.
S1001 and H2002 would authorize the governor and the Legislature to sue the feds over the health care legislation. It declares that the power to require individuals to buy health insurance is not found in the U.S. Constitution, and it permits any individual to opt out of the federal mandate without penalty.
SCM1001 and HCM2001 are “postcards” to Congress. As originally introduced, they asked the federal government to pay for all of the state’s costs to comply with the federal health care law. Although HCM2001 was amended by the House Appropriations Committee.
Republicans have argued that the health care law is unconstitutional.
“If you want to buy health care, you can. If you don’t want to buy health care, you shouldn’t be forced to,” Senate Majority Leader Chuck Gray said.
Meanwhile, Rep. John McComish, the House majority leader, said Arizona is “really being punished for doing more by covering more people above the federal poverty line.”
“As a state, we’ve gone to great lengths to balance a historic budget deficit since January 2009. The votes cast by Congressional Democrats have unraveled the meaningful budget solution that took all of us so much hard work,” he said.
McComish said Republican staff attorneys believe the state has standing to sue, but he struggled to explain the rationale. In fact, none of the Republican leaders who showed up for the press conference were able to explain, from a legal standpoint, exactly why they think Arizona has standing to sue the federal government over the health care law.
Assuming the governor signs S1001 or its identical H2001, the bill becomes effective 90 days after the end of the special session and is retroactive to March 23. The goal of the retroactivity clause is to allow the governor to file suit now, rather than wait until the bill becomes law.
During the committee hearing, legislative staff briefed members of the House Appropriations Committee about the federal health care law’s effects on Arizona.
House Democrats tried unsuccessfully to amend H2002 to prevent Brewer from spending state money on the lawsuit, but Republicans beat back the effort.
The memorial, however, was amended by the House panel before it passed. Both measures were approved 8-4 along party lines.
Rep. John Kavanagh, who chairs the Appropriations Committee, changed HCM2001 to ask Congress to repeal the health care reform legislation instead of asking for the federal government to cover all of Arizona’s costs to implement it.
Rep. Andy Biggs, a Gilbert Republican, said he asked for the amendment because it was “intellectually dishonest” to claim the health care law is unconstitutional while asking the federal government to give the state more money to cover the costs it requires.
The Senate has not adopted similar language, and Republican leaders were expected to meet this afternoon to discuss how to proceed with the memorials.
Meanwhile, the Senate measures – S1001 and SCM1001 – were approved by 4-2 votes in the Judiciary Committee.
During the hearing, Republicans pressed one point – that the feds are supposed to work for the states and that their powers are limited in the U.S. Constitution. Sen. Russell Pearce, a Republican from Mesa, cited the 10th Amendment, which dictates that powers not delegated to the federal government are reserved for the states or for the people.
Republicans said nowhere in the U.S. Constitution does it say that the federal government can regulate health care. The feds have interjected themselves in the Arizona budget, and by passing the two measures, Arizona is simply trying to get its sovereign control back, they said.
But Sen. Ken Cheuvront, a Democrat from Phoenix who voted against the measures, said 200 years of Supreme Court ruling have buttressed the federal government’s authority to regulate certain matters, including health care. One example, he said, is the requirement on hospitals to provide emergency treatment to all individuals.
Cheuvront also objected to the measures because the state may have to spend money to sue the federal government at the same time important state programs are being cut back.
During the discussion on SCM1001, Gray, chairman of the Judiciary Committee, likened the situation to petitions made by the colonies to King George III to detail their grievances against England.
“Our founding fathers petitioned the king over and over and over again… And they petitioned and they petitioned and they petitioned and then they finally went to war,” he said.
– Jim Small contributed to this article.