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Tea Party Wants People’s Choice for Top State Litigator

Now that Republicans are firmly in charge of both legislative chambers, members of the Senate majority are hopeful they can take the first official step toward making Tennessee’s most elite lawyer an elected government post.

And that’s good news to state tea party groups.

More than a dozen leaders from various organizations and elements of the populist conservative protest movement across Tennessee met up on Capitol Hill Wednesday to begin lobbying for a short list of priorities, among which is amending the Tennessee Constitution to provide for direct election of the state attorney general.

Tennessee is the only place in the country where the attorney general is appointed by the state’s supreme court.

A handful of Republican lawmakers pushed the issue last year after state Attorney General Robert Cooper declined to cooperate with requests to join a federal law suit challenging the U.S. government’s constitutional authority to require that all citizens obtain health care. The measure passed 19-14 in the Senate last year but stalled in the House of Representatives.

Senate Judiciary Chairwoman Mae Beavers, who carried the bill last session, plans to file an identical version this year.

Beavers has yet to find a member of the House to carry her bill: Last year’s sponsor, Riceville Republican Mike Bell, has graduated to the Senate. But once that matter is addressed, Beavers anticipates GOP dominance will ensure the bill enjoys rather smooth sailing to the governor’s desk.

Because the measure requires changing the state constitution, the same bill, if passed this session, would need to be approved again — but on a two-thirds majority vote — by lawmakers in the 108th General Assembly in 2013 or 2014. The amendment could then be put before Tennessee voters in the 2014 gubernatorial election.

The five-member Supreme Court appointed Attorney General Cooper in 2006. He is serving an eight-year term.

“I think it’s been a popular issue in this last election with the attorney general saying he would not represent the voters of Tennessee in terms of the Health Freedom Act,” said Beavers, R-Mt. Juliet. “He’s kind of twice removed from the voters.”

Craig Fitzhugh, leader of the badly outnumbered House Democratic Caucus, doesn’t see the current arrangement for selecting the state AG as in any way broken. And therefore it isn’t in need of fixing, he said.

“Hopefully we’re not just talking about this because of one particular decision or non decision by our current attorney general,” said Rep. Fitzhugh, D-Ripley. “You don’t want to throw everything away because of one particular decision that an individual makes whether he or she is an attorney general or a legislator or a judge or a governor for that matter.”

The attorney general’s office isn’t too keen on the idea either. Cooper’s spokeswoman, Sharon Curtis-Flair, suggested that an unintended consequence of injecting electoral political considerations directly into the office might be that legislators and the governor’s staff would be reluctant to make requests or share potentially sensitive information with an AG who has a competing political agenda, thus devaluing his or her advice and possibly leading to costly litigation for the state.

Cooper’s office has also floated the argument that the election of an attorney general will merely result in the state getting the best campaign cash collector, and not necessarily the best lawyer for the job.

Those objections aren’t terribly convincing to tea partiers. They perceive that the existing system indeed is flawed — that the attorney general in Tennessee is accountable to nobody in particular, and there’s nothing in place to realistically guard against him operating simply on his own ideological biases with little regard for the wishes of a democratic majority of the people.

“Across the country, Americans have felt that we’ve created a monster and set it loose without being responsive to us. We’re trying to reign it back in, and this is just one little facet of where we feel in Tennessee that an office has run away from the will of the people,” said attorney and Fayette County Tea Party member Hal Rounds.

Another alternative, say tea party leaders, would be for the Legislature to reassign the attorney general’s litigation duties to the solicitor general, who would be elected and would have the authority to enter into law suits, like fighting federal health care reforms, while the attorney general focuses on other activities such as issuing objective legal opinions to lawmakers and the governor.

“We seek either an amendment to the State Constitution that will make the Attorney General installed by a popular vote; or, in the alternative, by reassigning the duty of litigating on behalf of the State to the newly separated office of Solicitor General, which office will be an elected position,” read the Tennessee Tea Party‘s 2011 priority list.

Lt. Gov. Ron Ramsey, who ran for governor in 2010 with the backing of many Tennessee tea partiers, is an important ally favoring direct elections for attorney general. Ramsey said he’s also intrigued by the group’s solicitor general revamp idea, but stopped short of endorsing it, saying he needed more time to study the issue.

Electing the attorney general is one of the top issues on the tea party agendas all across Tennessee — along with pushing the state to take aggressive steps to wean itself off federal subsidies, resist unfunded or what many consider unconstitutional federal mandates, better enforce and abide by constitutional law in general, and more thoroughly educate public school students about American history, government and the ideals of the nation’s founders.

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Education NewsTracker

AG Opines on Memphis-Shelby School Merger Voting Issue

Only city of Memphis residents may vote in an upcoming election on whether to merge Memphis City Schools with Shelby County Schools, according to an attorney general’s opinion issued Monday.

The city has been engaged in a fierce debate over whether to combine the predominantly black city schools with the predominantly white county system since a December vote by the city school board backing the move.

Proponents, including the Memphis Branch of the NAACP, say a merger is best for children in the county and city.

“The sum of the Memphis City and Shelby County schools can be greater than its disparate, warring parts,” the Commercial Appeal’s Wendi Thomas wrote shortly after the vote.

But opponents fear the merger could hamper economic growth and encourage people to leave the area. The Tri-State Defender recently predicted that combining the school systems would  lead to “a further downward spiral of the education system and an unimaginable situation for those that remain.”

Read more:

State attorney general rules on charter surrender vote, WREG Channel 3

Tennessee AG says residents outside Memphis cannot vote on charter surrender, WMC Channel 5

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Liberty and Justice News

Traffic Camera Talks Restarted

Legislators say they’re going to give debate over stoplight cameras another go next year. But they are not sure how far down the road they’ll get toward sending a bill to the governor’s desk.

The Senate Transportation Committee met for nearly two hours Tuesday to hear the latest traffic safety statistics from major metro police departments using traffic cameras to ticket drivers who violate driving laws.

The issue’s been something of a political flash point for some time now. Lawmakers last formally discussed the subject seven months ago.

Arguments over how, when or if local law enforcement should be using the unmanned surveillance equipment to spy on motorists involve a range of disagreements and competing perspectives.

Among them are questions about the essential purpose of the image-recording devices — whether cameras at intersections are used more for preventing accidents or as tools to boost local government revenues. And if safety is the priority, are they demonstrably effective?

There are further debates over how much oversight the companies that make, install or maintain the equipment ought to be subject to, and whether people who’re ticketed as a result of camera-based evidence are being afforded their full spectrum of rights, including that of being able to confront and question their accusers.

Tennessee Attorney General Robert Cooper has issued more than one opinion, most recently last February, indicating he see no legal problems with traffic camera use.

The Senate put the breaks on a bill that made it through the House of Representatives last session. The reasoning cited was that Senators needed more time to study the issue because they weren’t particularly involved or kept apprised of the legislation development.

The Senate Transportation Committee plans to continue studying the issue in 2011, according to its chairman, Jim Tracy, R-Shelbyville. He said his committee would start from scratch instead of building on language from the House bill. Tracy is “not sure” whether any legislation will get the green light for floor votes by the time lawmakers break for the year.

“I want to make sure it’s a safety issue,” said Tracy after Tuesday’s meeting. “I want to look at statistics at these intersections where we’ve got data from Murfreesboro and Chattanooga and Knoxville and see if actually accidents have gone down and there’s been safety there.”

For now, lawmakers are mulling over the prospect of standardizing traffic camera practices across the state, such as by limiting the total amount traffic violators can be charged, capping the number of cameras used or mandating that private companies operating the equipment not be paid per violation.

On the other hand, some lawmakers are still flat-out opposed to them. State Sen. Mae Beavers contends that traffic cameras are simply unconstitutional. “I’ve always had a problem with them and I always will,” said the Mt. Juliet Republican, who heads the Senate Judiciary Committee.

There are no guarantees what will happen, said. Sen. Andy Berke, a Chattanooga Democrat. Lawmakers may ultimately vote to standardize the cameras. Or, they may vote to ban them altogether, he said.

“I don’t assume they’re here to stay at all,” Berke said, adding that he expects traffic-camera discussions in the Tennessee Legislature to continue for years, not months.

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News

Senate Advances Attorney General Election Amendment

After putting the issue on hold earlier this week, Sen. Mae Beavers managed today to convince a slim Senate majority to embrace changing the Tennessee Constitution to give voters the power to determine who should become the state’s chief prosecutor.

But if the narrow margin by which the measure passed today is any indication, the odds appear steep against the state electorate ever even getting a chance to weigh in on the constitutional amendment question itself — let alone ever actually getting to cast ballots for an attorney general.

Nineteen state senators voted for the resolution, 14 against it.

It now must pass the House of Representatives before this session ends. After that, it’ll have to be passed again in both chambers next session — but by two-thirds majorities in both, not just a simple majority.

The measure first came up for a vote on Monday, but faltered after several lawmakers wondered why Beavers, a Mt. Juliet Republican, would want to fix a system they said wasn’t “broken.” They also asked why she was only pushing for attorney general elections, and not voter-selection of other constitutional officers as well.

Said Sen. Roy Herron, D-Dresden, “Perhaps the most important thing that what we can look to is not what has been said but what has not been said. What you have not heard is that for the last 140 years the attorney generals have been too political. What you have not heard is that in the last 140 years the attorney generals have failed to serve this state well.”

Beavers said she actually has supported pushes in the past to elect other constitutional officers. However, she said, the secretary of state, the comptroller of the treasury, and the treasurer are themselves appointed by elected officials. Tennessee Supreme Court justices aren’t elected by the people — making the attorney general, whom they appoint, “twice removed” from any direct democratic accountability, she argued.

Rep. Mike Bell, R-Riceville, will be carrying the bill in the House.

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Business and Economy Health Care Liberty and Justice News Transparency and Elections

Ramsey Revving Up Senate for Fresh ObamaCare Resolution

Even as he gears up for a Senate vote Monday urging the state’s top lawyer to sue over the new federal health care bill, Lt. Gov. Ron Ramsey has taken preliminary steps to investigate the use of a special counsel to take up the challenge should Tennessee Attorney General Robert Cooper ultimately refuse.

Ramsey, R-Blountville, said his hope is that Cooper will see votes in the House and Senate as persuasion to join other states in fighting the mandates of the new federal law, making a special counsel unnecessary.

But the lieutenant governor has been working with Joseph Barnes, director of the Office of Legal Services, searching for precedents as guidance on turning to a special counsel.

Thus far, there is little in the way of a roadmap if the destination is suing the federal government. “There is a precedent for hiring special counsel to defend legislators, or a special counsel when the legislature passes a law and the attorney general refuses to defend that in court because he thinks it’s unconstitutional to begin with,” Ramsey said. “But as far as a precedent in actually suing the federal government, no. So we’re trying to figure out how all this works.”

A Senate vote is scheduled for Monday on a resolution urging the attorney general to join at least 16 other states in challenging the constitutionality of the new federal health care law. The Senate Judiciary Committee approved the resolution last week. After that vote, Ramsey raised the possibility of using a special attorney to fight the federal government, saying that if Cooper refuses to do as the resolution asks, “We’ll cross that bridge when we get there.”

Ramsey said early on that if a special counsel were needed he would like to find someone to handle the job for free.

“Obviously, I’d like to think we could get somebody to do it pro bono. That has happened in at least two or three other states,” Ramsey said. “I have not gotten that far down the road, simply because I hope this resolution passes overwhelmingly in the House and overwhelmingly in the Senate and our attorney general will decide on his own to join in.”

While Ramsey said he wants the attorney general’s action, there is reason to doubt whether Cooper would grant the Legislature’s request. Cooper issued an opinion last week in response to the Tennessee Health Freedom Act, a bill that would allow Tennesseans to say no to requirements in the federal law that mandates purchase of insurance coverage and tells the attorney general to preserve the rights of Tennessee residents and defend the state if necessary.

But Cooper responded by saying the U.S. Constitution gives the federal government priority over the state’s measure. Further, he said the Legislature could not require the attorney general to act since his position falls under the state’s judiciary branch and would therefore create a separation of powers issue. The Senate has passed the Health Freedom Act, but it slowed in the House after Cooper’s opinion and is scheduled to be considered again by the House Commerce Committee on Tuesday.

Ramsey is waving Cooper’s opinion aside, saying that challenging the constitutionality of the federal law is a completely separate issue than what the attorney general dwelt upon in his response to an inquiry from three House Democrats about the constitutionality of the Health Freedom Act.

The desire to fight the federal law focuses on the constitutional grounds of mandating the purchase of insurance, but there appears to be little doubt that one element of the federal law that is driving opinions in several states is the unfunded mandates the law would place upon states by expanding the Medicaid program.

Ramsey, who is running for governor in the Republican primary, has said his effort is not motivated by political ambition. His two foremost opponents in the Republican primary take similar positions as Ramsey on the issue.

Knoxville Mayor Bill Haslam said the state should pursue all alternatives to address the federal law and that he is open to a lawsuit.

“The health care bill does have serious ramifications for the state,” Haslam said. “It’s going to cost the state over $1 billion over the first five years of it, and we’re in the hole we’re in already. I think it’s incumbent upon the governor to see what the alternatives are to prevent that.”

He says there might be strength in numbers.

“I think if I were governor, what I would be pursuing would be banding together with other governors to go and make our case to Washington about the consequences of the health care bill for us,” Haslam said. “States should look at all alternatives. What you have to do when you do that is always consider the costs and the likelihood of success.”

In a gubernatorial forum Friday in Wilson County, another Republican contender, U.S. Rep. Zach Wamp, who voted against the health care bill in Congress, said he would do “anything and everything” to protect the state on the health care issue.

“It is unfortunate that our state attorney general is not joining the other states’ attorneys general,” Wamp said, adding that the first signs of trouble came when the federal stimulus bill came down with stipulations for changes in unemployment compensation law.

“This is a constitutional conflict now between the states that have Tenth Amendment sovereignty defined in our Constitution and this nanny state federal government that’s raining down all over us,” Wamp said. “So we do need the attorney general to stand up. We need to legislatively try to cure this. We need to fight it at every level. As long as I’m in Congress, I’m going to work to repeal the whole blasted thing and start over with incremental reform.”

Haslam said he liked what Tennessee Sen. Lamar Alexander said on the floor of the Senate, that any senator who voted for the health care bill should have to go home and be the governor and live with it for five years.

“It’s like the federal government went out to dinner, ordered everything they want, then sent us a third of the bill,” Haslam said.

Mike McWherter, the likely Democratic nominee, has said the bill is the law of the land and should not be the subject of political grandstanding.

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Business and Economy Health Care Liberty and Justice News

TN AG: ObamaCare Reigns Supreme

Tennessee Attorney General Bob Cooper released an opinion today declaring that efforts underway in the state Legislature to challenge the federal government’s health care overhaul may not hold water.

“The public policy expressed in both SB 3498/HB 3433 and HJR 745 is directly opposed to the expressly stated Congressional intent of ‘achiev[ing] near-universal coverage’ for health care insurance,” according to the April 6 statement signed by Cooper, Solicitor general Michael E. Moore and Senior Counsel to the AG, Sue A. Sheldon.

The opinion came in response to a question posed to the attorney general by three House Democrats — Speaker Emeritus Jimmy Naifeh, Rep. Charles Curtiss and Rep. Henry Fincher– as to whether bills and a resolution currently under consideration in the House Commerce Committee are “likely preempted by federal law.”

The stated answer to that question in the opinion is, “Yes. A court would likely determine that SB 3498/HB 3433 and HJR 745 are preempted by conflicting provisions of the federal Patient Protection and Affordable Care Act.”

House Bill 3433, sponsored by Rep. Mike Bell, R-Riceville, declares “that the public policy of this state, consistent with our constitutionally recognized and inalienable rights of liberty, is that every person within this state is and shall be free to choose or decline to choose any mode of securing health care services without penalty or threat of penalty.”

The bill continues, “No public official, employee, or agent of this state or any of its political subdivisions shall act to impose, collect, enforce, or effectuate any penalty in this state that violates the public policy set forth in this section.”

It also declares it “the duty of the attorney general and reporter to seek injunctive and any other appropriate relief as expeditiously as possible to preserve the rights and property of the residents of this state, and to defend as necessary this state, its officials, employees and agents” against legal action by the federal government.

The companion bill, SB3498, passed the Senate on a 26-1 vote Feb. 17.

HJR745 is a constitutional amendment sponsored by Rep. Susan Lynn, R-Mt. Juliet.

It says no “law or rule shall…compel, directly or indirectly, any person, employer or health care provider to participate in any health care system” in Tennessee.

Citing the Supremacy Clause of the United States Constitution, the attorney general’s opinions states that if “either or both SB 3498/HB3433 and the constitutional amendment proposed by HJR 745 were enacted, adherence to both federal and state law would be impossible” and “would impede the achievement of the objectives of Congress as stated in the federal Act.”

The attorney general’s opinion also questioned the authority of the state Legislature to direct Tennessee’s highest ranking law enforcement officer, who is appointed by the state Supreme Court, to do anything.

“Legislation aimed at regulating the Attorney General’s discretion concerning which actions to prosecute and defend on behalf of the State could also raise separation of powers concerns, as the Office of the Attorney General and Reporter is a constitutional office that is part of the judicial branch of the State of Tennessee,” according to the opinion.

At a House Commerce Committee meeting Tuesday, Naifeh asked that the attorney general present his findings before members act on the legislation.  Cooper is expected at next week’s committee meeting.

Mark Engler can be reached at markengler@tnreport.com. Andrea Zelinski shot video and contributed reporting for this story. She can be reached at andreazelinski@tnreport.com.

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Press Releases

Ramsey to AG Cooper: Defend TN’s Rights

Press Release from Lt. Gov. Ron Ramsey, March 23, 2010:

(Nashville) – President Obama today signed a law triggering a massive government takeover of the nation’s health care system and Lt. Governor Ron Ramsey (R-Blountville) is again calling on Attorney General Bob Cooper to join his colleagues in at least 13 other states in legal action to stop implementation of the new law.

“The United States Constitution does not give the federal government the authority for this massive power grab that will reduce individual liberty and strangle state government finances,” Ramsey said. “Politicians in Washington may have temporarily lost their minds but we still have our sanity out here in the states and we need to take action to roll this law back.”

Late last year, Lt. Governor Ramsey asked Cooper to make preparations for protective legal action in the wake of the massive and unconstitutional health care bill passed by the United States Senate. The Attorney General deferred, opting to wait for passage by the United States House of Representatives.

“The job of the Attorney General is to defend Tennessee’s rights and so today I am calling on General Cooper to join 13 other attorneys general in the legal action that was filed today in Pensacola, Florida,” Ramsey said. The action was instigated in Pensacola under the direction of Florida’s attorney general and is also joined by a bipartisan group of AGs from South Carolina, Idaho, Texas, Nebraska, Michigan, Utah, Pennsylvania, Alabama, South Dakota, Washington, Colorado, and Louisiana.

In addition to the legal action, Ramsey is also urging his colleagues in the State House to pass the Health Care Freedom act scheduled to be heard tomorrow in the Industrial Impact subcommittee. Lt. Governor Ramsey will headline a press conference outside the Senate chamber before the vote to urge passage.

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News

Ramsey: Not a Moment to Lose in Health Care Battle

Lt. Gov. Ron Ramsey says there’s no better time than the present to start planning legal strategies  to potentially block the federal health care package from being implemented in Tennessee.

In a letter sent Tuesday to Attorney General Bob Cooper, Ramsey asked what legal maneuvers are available to the State of Tennessee in on order to protect taxpayers from what Ramsey estimates is a $1.2 billion unfunded federal mandate.

“It is time for the Attorney General’s office to offer preliminary legal options to the legislature as to how we may best protect Tennessee citizens from this unfair and quite possibly unconstitutional federal action,” according to Ramsey’s letter. “(T)he General Assembly must be proactive in dealing with what Governor Bredesen has called “’the mother of all unfunded mandates.’”

Last week, Cooper said he would wait until the U.S. Senate and House bills are reconciled and ironed out before digging into legal arguments the state can take — that to do otherwise would be an irresponsible use of his staff’s time and resources.

The U.S. Senate narrowly approved its health care reform package on Christmas Eve, but not before promising to pick up Nebraska’s share of additional Medicaid costs.

Ramsey, who is calling the political move the “Nebraska Deal,” asked Cooper if the state could form a legal argument to block the bill or ensure the same arrangement for other states.

“We’ve seen mandates from the federal government all the time, but nothing to this magnitude,” Ramsey told TNReport.com. “I don’t think it’s what our founding fathers had in mind and I don’t think it is fair for other states to pick up the tab for Nebraska.”

Ramsey specifically asked: “Does any provision within the United States Constitution or other federal law provide a legal basis by which the State of Tennessee and other states could seek judicial intervention to block implementation of H.R. 3590 or, alternatively, to ensure that the ‘Nebraska Deal’ is extended to the other states?”

Ramsey, who is seeking the Republican nomination for governor in August, says he wants to give the General Assembly the information it needs to proactively block the bill.

On Monday, Gov. Phil Bredesen said he was “moderately outraged” by the health care package politicking, but said he would leave the question of initiating legal action to Cooper.

“I’ve said publicly that some of the things that have happened with the bill are outrageous, but nothing is final yet, so I agree that there is nothing to action on at this time,” Bredesen said in a statement Tuesday.

Attorneys general in at least 13 other states have agreed to pursue legal action against the health care reform.

Rep. Susan Lynn, a vocal advocate for state sovereignty on this issue, says she plans to introduce legislation – including a constitutional amendment – to protect Tennessee from the federal mandate.

Ramsey said there isn’t a moment to lose.

“We must begin to prepare for the harsh impact of either the House or Senate bill on Tennesseans. As Governor Bredesen has not ruled out asking that Tennessee join other states in challenging the proposed legislation, there is no reason to wait,” he said.

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Health Care Liberty and Justice News

Tennessee AG Not Yet Ready to Fight Feds on Health Care

Government officials and lawyers from a number of states around the country are lining up to battle against the advancing federal health care overhaul. But Attorney General Bob Cooper says he’ll sit this one out – at least for now.

Cooper’s office said expending time and effort investigating the legal complexities of the health care legislation under discussion in Washington, D.C., before its details are fully settled and finalized, “would not be an appropriate or effective use of this office’s resources.”

“Until we know what the bill as enacted says and when its provisions take effect, any such analysis is premature,” read a statement from Sharon Curtis-Flair, Cooper’s spokeswoman.

However, Rep. Susan Lynn — one of two House lawmakers publicly asking Cooper to start crafting legal defenses against federal impositions — also plans soon to introduce state legislation confronting measures and mandates in the health care revamp that she believes outstrip their constitutionality.

Lynn wants the Tennessee Constitution amended “to clarify the people of the state will never be mandated by the government to purchase a product,” including health insurance.

“I am very concerned about this overreaching of federal powers. If these unconstitutional issues…are allowed to pass or they go unchallenged, there will absolutely be no limits left on the federal government,” said the Mt. Juliet Republican, who chairs the House Government Operations Committee.

Tennessee is one of several states gearing up to possibly take on the Patient Protection and Affordable Care Act, a health care overhaul approved by the U.S. Senate on Christmas Eve. At issue in addition to its constitutionality is the bill’s cost and a controversial political compromise that helped get it passed.

On Tuesday, Florida Attorney General Bill McCollum, a Republican, took issue with the health care legislation, questioning whether it’s legal to charge people a tax or penalty for lacking health insurance.

In a letter sent this week, he urged fellow attorneys general across the country to help launch a “full review” of that mandate’s constitutionality and pinpoint legal options states can use to block federal directives they find objectionable.

Lawmakers in 15 states have filed bills or constitutional amendments attempting to halt the health care package, according to the National Conference of State Legislatures. Officials in at least 11 other states are reportedly considering doing the same.

Tennessee isn’t on that list yet, but Lynn and Rep. Debra Young Maggart, R-Hendersonville, say they’re determined to thwart the new federal mandates.

The two state representatives asked Cooper just before Christmas if he’d begin prepping a legal case against the health care legislation, citing a violation of Tenth Amendment state sovereignty protections.

Demands for Washington to heed the Tenth Amendment have dramatically intensified among conservatives following the election of President Barack Obama, and opposition to expanded federal control over health care has galvanized protesters at Tea Party rallies around the country throughout 2009.

Lynn, who is running for state Senate in 2010, helped pass a resolution last spring reiterating Tennessee as a sovereign state and denouncing federal legislative overreach. She says Democratic-led health care reform efforts, which include an estimated $1.4 billion price tag, are an unfunded and ultimately unlawful mandate on the states.

“We see this as a violation of equal protection of the law, an affront to our sovereignty, and as a breach of the U.S. Constitution,” she said.

Gov. Phil Bredesen, a Democrat, has expressed concern in the past on the price of the pending health care reform effort as well. His office declined to comment on whether the attorney general should commit to building an arsenal of legal arguments to try and block the legislation.