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Nebraska's sweet deal on healthcare reform could lead to lawsuit

Under a healthcare reform deal struck by Sen. Ben Nelson, Nebraska would be the only state that wouldn't have to pay for new Medicaid recipients. South Carolina's attorney general is threatening to file a legal challenge if the proviso is part of the final healthcare bill.

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South Carolina Attorney General Henry McMaster is threatening to file a constitutional challenge to Congress's healthcare reform effort unless a special provision favoring Nebraska at the expense of all other states is stripped from the law.

In a news conference at the National Press Club Wednesday, Attorney General McMaster said he has the support of 14 other attorneys general who agree that the Nebraska amendment raises significant constitutional concerns.

Democratic leaders inserted a special measure into the Senate healthcare bill in December that would exempt Nebraska from having to pay its usual share for coverage of new Medicaid participants. Instead, the federal government would pick up Nebraska’s share of the cost, estimated at $100 million over 10 years, while the rest of the states would continue to pay their part.

Nebraska Sen. Ben Nelson had been on the fence over whether to vote for the Senate version of the healthcare bill. After inclusion of the Nebraska Medicaid provision, he provided the critical 60th vote that helped insulate the legislation from a Republican filibuster.

Critics of the maneuver are calling it the “Cornhusker Kickback.”

Constitutional challenge

But McMaster and his colleagues are not raising questions about illegal bribes or kickbacks, and there is no evidence that Senator Nelson received any private, personal gain in exchange for his vote. Instead, the McMaster effort is asking a more fundamental question: Whether the legislative deal violates congressional power under Article I of the Constitution.

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