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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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State Sovereignty Supporter Pushes Federal Mandate in TN Legislature

Earlier this year, Republican state Rep. Debra Young Maggart co-sponsored a resolution demanding that the federal government refrain from further burdening Tennessee with unwarranted and potentially unconstitutional policy mandates.

But earlier this month, Rep. Maggart and Sen. Diane Black, R-Gallatin, expressed their interest in legislatively obligating the State of Tennessee to embrace an as-yet unfulfilled federal mandate, signed by George W. Bush, that critics say violates just the sort of constitutional principles lawmakers like Maggart saw fit to reiterate in their state sovereignty resolution last session.

The federal mandate at issue here is part of the Adam Walsh Child Protection Safety Act of 2006 (pdf). Among other things, it demands harsher treatment of juveniles found guilty of committing sex crimes — in particular, by posting youthful offenders’ pictures, names, birthdays and addresses online.

“The adoption of this legislation would put Tennessee into compliance with the requirements for juveniles to be placed on state’s Sex Offender Registries under the Adam Walsh Act which was scheduled to go into effect in 2009,” according to a press release issued Dec. 7 by Maggart and Black. “Tennessee was awarded over $50 million in Byrne Grant funding last year, 10 percent of which could be in jeopardy unless the state adheres to these requirements.”

Failing to abide by the Act could result in a loss of state law enforcement subsidies of $750,000 to $940,000 next year, the Tennessee Office of Criminal Justice Programs reports.

“Is it a mandate? Yes,” said Maggart.

But she sees little in her past advocacy for the sovereignty resolution — combined with her support now for the Bush-era federal mandate — to indicate she’s guilty of a political double standard.

“I know we need this money,” Maggart told TNReport.com. “It is a mandate, but again, it is what we’re operating under, and I think that we should have uniform laws on sex offenders across the country because sex offenders are really clever.”

The Tennessee sovereignty resolution, House Joint Resolution 108 (pdf), was really meant to ward off unfunded mandates such as government-run health care or expansions of education programs, Maggart said. It wasn’t necessarily intended to label all the federal government’s directives to the states as bad.

“I just think they’re two different animals,” she said. Of the federal health legislation under consideration in Congress right now, Maggart said, “The costs are going to be out of this world.”

“But keeping sex offenders out of our community where they can prey on our children,” she added, “is a completely different thing.”

Michael Hough, a public safety specialist for the Washington D.C.-based American Legislative Exchange Council, said that elements of the Walsh Act, particularly the juvenile offender provisions, were upsetting to state lawmakers, many of them conservatives, from around the country who gathered in Atlanta last summer to discuss the law.

“Everyone basically agreed that parts of the law were very good, but — as happens a lot when the federal government passes things — they don’t really understand what’s going to happen when it is put out in the states.” said Hough, whose organization tends to promote state-level, small-government, market-oriented policy solutions.

Hough said many lawmakers complained of the costs associated with implementing much of the Walsh Act — that they’re in fact even higher than the potential Byrne grant cuts that would result from noncompliance.

Likewise, the National Conference of State Legislatures has stated that the Walsh Act works to “preempt many state laws and create an unfunded mandate for states.”

The Act was also found unconstitutional in April 2008 by a U.S. District Court judge in Florida, who declared that under the general reasoning inherent in the Walsh Act, “virtually all criminal activity would be subject to the power of the federal government.”

“Surely our founding fathers did not contemplate such a broad view of federalism,” wrote the judge.

His opinion was later overturned on appeal by the Eleventh Circuit Court of Appeals, which said the provisions of the United States Constitution allowing for regulation of interstate commerce permitted Congress to pass laws that “track those offenders who move from jurisdiction to jurisdiction.”

To date, only Ohio has adopted the Walsh Act, and currently it is under review in the state supreme court.

“This is not about kids playing doctor when they’re 10 years old,” said Maggart. “The needs of the community to be protected by a 16-year-old that’s a rapist, it outweighs everything.”

But Nashville defense attorney Brent Horst, himself a former sex-crimes prosecutor in Florida, said situations where children “playing doctor” crosses a line could result in an individual being publicly labeled as a heinous sort of criminal for decades.

“No one wants to be soft on sex offenders,” said Horst, but requiring that juvenile offenders be added to the adult registry is an “incredibly stupid, unfair and unjust” idea. It could end up subjecting a “a poor kid who’s just a normal teenager experimenting with his sexuality” to years of societal contempt, he said.

“It’s all about the (federal) money,” Horst added.

If approved by both chambers and OK’d by the governor, the new law would require juvenile offenders to register if they have been found guilty of crimes such as rape, aggravated sexual battery, aggravated rape, rape of a child, aggravated rape of a child or an attempt to commit of those crimes.

Juveniles convicted as adults under Tennessee law must already register with the sex offender website.

Maggart, who, like Sen. Black, is from Sumner County, was the No. 2 co-sponsor of the HJR108 sovereignty resolution. A very popular measure, it passed 85-2 in the House and 31-0 in the Senate. Black didn’t appear to vote on the legilsation.

HJR108 reaffirmed Tennessee’s claim as a self-governing jurisdictional entity in keeping with the Tenth Amendment, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

HJR108 also lamented that while “the federal government was created by the states specifically to be an agent of the states…today, in 2009, the states are demonstrably treated as agents of the federal government.”

Similar measures were enacted in several other states, but on June 23 Phil Bredesen put pen to paper and made Tennessee’s the first such resolution in the country signed by a governor.

The resolution’s chief sponsor last spring, Rep. Susan Lynn, R-Mt. Juliet, says she tends to agree with Maggart — that the Hendersonville Republican’s effort to list juveniles on public sex offender electronic bulletin boards is more an effort to improve public safety in Tennessee than an attempt to suck up to Washington, D.C.

“This would be a Tennessee law to put juveniles on a sex offender registry,” said Lynn, who supports the bill. “It would happen to be coincidence, as far as I’m concerned, that the federal government is mandating this.”