Suing the feds over ObamaCare: Oh, yeah, it’s political.
Americans claim not to like it when the courts are used for political purposes. This is, of course, romantic nonsense. The courts are used constantly for political purposes. Nonetheless, elected officials who find themselves fighting the good fight in court usually insist those fights aren’t political.
Thanks to Nevada’s steadfast preference for a part-time legislature, you can pretend if you want to that the scuffle between Governor Jim Gibbons and Attorney General Catherine Cortez Masto over joining the Florida ObamaCare lawsuit is not political. Your illusion is supported only by the even-numbered year, and the empty chambers on Carson Street. Were the lawmakers in session, politics would push its way to center stage, and nobody could claim to be above the fray.
For evidence, the Reasonable Reporter points to Tennessee, where a different kind of executive branch split has developed into a magnificent political drama.
Tennessee’s Democratic Governor Phil Bredesen made headlines last fall, when he called the federal health care bill “the mother of all unfunded mandates.” But now, on the question of suing the feds, Bredesen has mellowed, leaving the decision to Attorney General Bob Cooper, also a Democrat. Cooper’s response loosely mirrored that of Nevada’s Cortez Masto. He said he’d analyze it, but didn’t believe a court fight would be worth the resources it would require. Cooper has not yet issued a formal opinion on the constitutionality of the new law, saying he’ll wait until the reconciliation process is complete.
It’s Tennessee’s Republican Lieutenant Governor, Ron Ramsey, who has urged taking ObamaCare to court, and he’s working with state legislators to leave Governor Bredesen no choice, politically speaking. Tennesseans are in favor of joining the Florida lawsuit by more than two-to-one, and members of the Tennessee legislature are key players in a scheme that features voter anger as a tool.
Ramsey spokesman Lance Frizell told the Reasonable Reporter today that he expects both houses to approve amending a current state law that authorizes the governor, in consultation with the attorney general, to hire outside counsel. The revised statute will erase the attorney general from the process, and authorize the governor to hire outside counsel on his own.
Ramsey’s strategy is to then call upon Governor Bredesen to do what Jim Gibbons did this week. Bredesen will have to choose between joining the Florida lawsuit or flouting the will of Tennessee voters. Bredesen is termed out, but is a still-viable politician with future options that could include seeking a U.S. Senate seat, says Frizell.
Oh, and one more important detail – Lt. Governor Ramsey is running in a fairly tough three-way primary for Governor.
But this is not the end of the story. Republicans will soon force Attorney General Cooper to make a choice similar to the one they’re forcing on Bredesen.
In the Tennessee General Assembly, Republican Mike Bell introduced the Health Freedom Act on the day after the federal package passed. In briefest terms, it’s an opt-out law for individual citizens, and it requires the state attorney general to defend any Tennessean who is prosecuted for failure to buy insurance in accordance with the new federal mandate. Bob Cooper has opined that Bell’s bill is superseded by federal law.
Fine, say Ramsey and Bell. But Attorney General Cooper has not addressed the constitutionality of the federal health care reform. They are now pushing a joint resolution that formally asks Cooper – having ruled out his support for statutory protection of Tennesseans – to take a stand on the constitutionality of the federal health care reform.
“My guess is, he will say no,” said Frizell, “And we will proceed from there in another way.” He didn’t elaborate, but there’s an additional twist to Cooper’s political status. The Tennessee attorney general is not elected. He’s the only state attorney general in the nation appointed by the state Supreme Court. This has long been a topic for political consternation.
Bell told the Reasonable Reporter in a phone interview that he is also co-sponsoring a bill to change the way the attorney general is selected. Never waste a good crisis?
Back to Nevada, where the official dialog surrounding the Florida lawsuit, to which Nevada is now a party, is rational and reasoned. The talk churning beneath the surface, though, bristles with accusations and political deprecation. The anti-Gibbons brigade denounces the governor’s use of his authority — which they say is questionable when it comes to hiring outside counsel — to bolster his weak re-election campaign. The attorney general is called “derelict in her duties,” even ripe for impeachment, were it not for the fact that she could only be prosecuted by calling a costly special session. (And, well, an assembly chamber packed with Democrats is hardly the place to get the impeachment ball rolling.)
It is possible, by the way, to be both authentically certain that the new law tramples individual rights, and to use the outrage to political advantage. It is also possible both to harbor authentic doubts about successfully challenging the law, and to use those doubts as cover when public opinion is not on your side. It’s possible that it’s not political, even though it is.
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