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.