TribBlog: Abbott Explains Health Care Lawsuit

As soon as Barack Obama signs the just-passed health care reform bill into law on Tuesday, a coalition of states will file a lawsuit challenging its constitutionality. Texas will be among them.

Texas Attorney General Greg Abbott spent the weekend weighing the options of how — it wasn't a question of "if" — Texas would challenge the health care reform bill in court.  On Saturday, he posted on his Facebook page, “It's just a question of whether to file our own lawsuit or join a multistate effort.”

On a Sunday evening conference call, attorneys general from around the country opted to move forward together with a single lawsuit.

I spoke with Abbott on the phone Monday afternoon. He explained the thinking behind the team effort:

Of course, the big question is upon what grounds this group of attorneys general will be making their claim.  A term tossed about throughout the GOP gubernatorial primary with regard to how to respond to federal healthcare reform was “nullification,” the theory that a state has the power to nullify any law passed by the federal government they believe is unconstitutional. Abbott says they won't be relying on that argument at all. “Nullification as a legal theory is not a part of this," he says. "If we prevail, it is, in essence, a nullification of this law.” The case they’re making hinges on the individual mandate in the bill and the commerce clause in the U.S. Constitution:

Abbott says the possibility of taking legal action against the bill came up in December.  As amendments came and went from the bill — and senators came and went in Massachusetts — the likelihood of such action being taken fluctuated until it became clear that the bill would indeed pass. Abbott laid out the timeline that brought him to this point:

Abbott declined to name specific states that will be involved in the lawsuit because that hasn’t been nailed down yet. However, he says, “It is a broad swath of states from across the country who are in agreement that the healthcare bill is unconstitutional.” 

Abbott also indicated that the final group of participating states will not represent the total number of concerned attorneys general.  “Some states have attorneys general who are supportive of the litigation, but because their governors may disagree, they will not be able to formally sign onto the pleading,” Abbott says. “They will be filing an amicus brief in support of the pleading that we file.”

One state with a lawsuit ready to go is Virginia, but they will not be a part of the coalition that includes Texas.  Abbott explained why:

After filing the suit tomorrow, the states will try to move the process along as fast as they can. “The real end game here,” says Abbott, “is getting it to the Supreme Court, and we want to get it there as quickly as possible.”

He understands that some may argue with this course of action. “Those who don’t like one person’s lawsuit may call it frivolous,” he says. “Others are calling it essential.  So, you’ll have people in both camps.”

But, will it succeed? Abbott doesn’t know, but he says, if it doesn't, it marks a major legal change:

As the process unfolds, one place to pay close attention to is the attorney general’s Facebook page, where he announced both his intention to take the matter to court and the decision to band together with other states.

Abbott explains the role new media is playing in his outreach on this and other issues: