Arkansas AG declines to wade in on health care law's constitutionality

Chris Rizo Apr. 15, 2010, 4:20am

Dustin McDaniel (D)

John Burris (R)

LITTLE ROCK, Ark. (Legal Newsline)-Arkansas Attorney General Dustin McDaniel said Wednesday that his office won't advise the state Legislature on whether the new federal health care reform law is constitutional.

In an official opinion, the Democratic attorney general said his office traditionally only advises legislators and other state officials on federal law if their questions involve Arkansas law.

McDaniel's opinion was requested by state Rep. John Burris, R-Harrison, who asked whether the health care overhaul President Barack Obama signed last month infringes on the state's sovereignty and whether Congress can require Arkansans to have health insurance under the threat of financial penalty.

Burris also asked whether the Patient Protection and Affordable Care Act that requires most Americans to have medical coverage by 2014 or face financial penalties is a violation of the Ninth Amendment for denying or disparaging other rights retained by the people.

"These questions do not fall within the scope of an attorney general opinion," McDaniel wrote in Opinion No. 2010-036. "The opinion rendering function of this office does not ordinarily extend to questions of federal law, except as those questions involve or require the interpretation of state law."

In addition to the constitutional questions, Burris, a first-term House member, also asked McDaniel whether the attorney general's office is precluded by statute from joining with other states to challenge the health care law's constitutionality.

"No state law precludes the attorney general from considering possible collective action with other states on particular matters," McDaniel replied. "The decision on such collective efforts depends upon my view of the merits of the legal arguments being raised. I have the authority and responsibility to use my judgment in providing legal representation to the State and its agencies and officials."

More than a dozen state attorneys general -- Republicans except for one Democrat -- are challenging the health care law's insurance mandate. McDaniel has declined to sue the Obama administration over the controversial provision, saying the lawsuit would likely fail.

The multistate lawsuit, led by Florida Attorney General Bill McCollum, was filed in U.S. District Court for the Northern District of Florida.

The health care overhaul will expand insurance coverage to more than 32 million Americans, marking the most significant expansion of medical care since Congress created Medicare in 1965 for the nation's elderly and disabled.

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