Tennessee

This article is part of the State Status and News series related to the Patient Protection and Affordable Care Act.

Tennessee opponents of the federal health-care reform plan say they'll press ahead with legislation challenging the program, despite an opinion from the state's attorney general that suggests their efforts would fail.

Republican state lawmakers say they still support legislation that would require the Tennessee attorney general to file a suit attempting to overturn the Patient Protection and Affordable Care Act passed last month by Congress. More than a dozen states have taken such actions.

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“The public policy expressed … is directly opposed to the expressly stated Congressional intent,” Cooper's office wrote, adding that “adherence to both federal and state law would be impossible.”

The opinion may set the legislature on a collision course with [Tennessee Attorney General Robert] Cooper.

Tennessee law gives the attorney general broad discretion to decide what litigation to pursue on behalf of the state. But lawmakers say they may try to force Cooper's hand in this situation nonetheless.

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Two lawsuits have already been filed by other states challenging the federal health-care law. Those suits might have some chance of succeeding, particularly if the states focus on the burdens the law places on them as the administrators of Medicaid, said James Blumstein, a professor of constitutional law and health policy at Vanderbilt University.

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Sisk, Chas. “TN Health Reform Opponents Undeterred by AG's Opinion”. The Tennessean. April 7, 2010. Available online as of 2010-04-07.

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About 100,000 people — mostly elderly or disabled residents — have been dropped since January 2009, including approximately 37,000 who had relied on the state program for all their health care needs. Coverage for 8,000 children was also reassessed, but a TennCare spokeswoman said the number of children ultimately cut from the program could not be verified.

The state's actions follow the resolution of a long-running court case involving people who receive Supplemental Security Income (SSI), a federal assistance program for low-income residents who are aged, blind or disabled and some infants hospitalized for long periods with major medical problems. SSI recipients are automatically eligible for TennCare, but the state had sought to discontinue coverage for those who lost the SSI benefits.

Some enrollees sued, arguing that the state was not taking into consideration whether they qualified on their own for TennCare. In 1987, they got a federal court injunction that prohibited the state from denying benefits to anyone who had ever qualified for SSI. As the case languished for two decades, the number of people affected grew to more than 150,000, about 13 percent of all TennCare enrollees. The group became known as the “Daniels class,” named for Cluster Daniels — one of the original participants in the lawsuit — who has since died.

In January 2009, a federal district court rescinded the injunction after the state argued that its new process for determining Medicaid eligibility had been approved by federal officials. The court action cleared the way for an evaluation of the Daniels class of recipients.

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Wadhwani, Anita. “Tennessee Removes 100,000 From Medicaid Rolls”. National Public Radio. April 8, 2010. Available online as of 2010-04-08.

Van Irion, an attorney and candidate for the 3rd Congressional District of Tennessee said he will file a constitutional challenge to the “Patient Protection and Affordable Care Act” today.

He said he planned to file the lawsuit at 2 p.m. at the United States District Court in Chattanooga.

Attorney Irion said he considered taking the action after his trip to Nashville last month to support the Health Care Freedom Act and other bills proposed “to protect Tennessean's against Obamacare.”

He said, “It became evident to me that the attorney general was unlikely to take action. Tuesday's announcement simply confirmed what I suspected.”

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“Candidate Irion To File Federal Lawsuit Against 'Obamacare'”. The Chattanoogan. April 8, 2010. Available online as of 2010-04-08.

The state Senate has voted 21-7 to pass a resolution urging the Tennessee attorney general to join states challenging the constitutionality of the federal health care overhaul.

The measure was sponsored by Republican Senate Speaker Ron Ramsey of Blountville, who is also running for governor.

All votes against the resolution were cast by Democrats on Monday. Three Democrats voted in favor of the measure.

Ramsey hasn't ruled out calling for an independent attorney to file a lawsuit on Tennessee's behalf if Attorney General Bob Cooper refuses to become involved.

Both of Ramsey's rivals for the Republican gubernatorial nomination, Knoxville Mayor Bill Haslam and U.S. Rep. Zach Wamp of Chattanooga, have expressed support for a lawsuit.

Read SJR0897 at http://capitol.tn.gov

Associated Press. “Senate Votes to Urge AG to Join Health Lawsuit”. WRCB-TV (NBC). April 12, 2010, 8:15 PM ET. Available online as of 2010-04-12.

Tennessee’s attorney general doesn’t think it’s possible. Gov. Phil Bredesen is against it.

But last week, Lt. Gov. and Republican candidate for governor Ron Ramsey claimed the political spotlight on the issue of whether Tennessee should challenge the national health care reform act.

Ramsey is sponsoring a bill that cleared a state Senate committee Wednesday urging the state to file suit challenging the constitutionality of the act.

Such a suit would claim the health care reform act violates the 10th amendment to the U.S. Constitution, which says powers not delegated to the federal government or prohibited by the federal government are reserved for the states.

Tennessee Attorney General Bob Cooper said the state legislation is not constitutional.

Ramsey conceded the legislation cannot force but only urge the attorney general to take the matter to court.

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Dries, Bill. “Debate Sparks Over Tenn.’s Role In Health Reform” Memphis Daily News. April 12, 2010. Available online as of 2010-04-13.

State lawmakers can’t pass any health care legislation that would tie the hands of future lawmakers, Attorney General Robert Cooper said in an opinion released Tuesday.

The opinion is the second on health care in as many weeks from the attorney general’s office. Last week Cooper said a related bill called the Tennessee Health Freedom Act is unconstitutional because it would seek to undo the federal health care reform plan.

This week, Cooper told lawmakers that they cannot bar their successors from acting on health care. The Health Care Freedom Act, a bill which is also pending in the General Assembly, seeks to do just that.

“As a threshold matter, we note that the bill unconstitutionally would purport to restrict the power of a subsequent General Assembly to pass legislation,” Cooper’s office wrote. “While the Legislature may bind itself to statutory provisions, it may not bind a subsequent General Assembly.”

The Health Care Freedom Act could be made constitutional if lawmakers were to take out the restrictions on their successors.

Sisk, Chas. “State Attorney General: Second health care bill flawed”. The Tennessean. April 13, 2010.

A bill seeking to allow Tennesseans to opt out of a new federal health care law is headed for a full House vote.

The House Commerce Committee voted 19-11 to advance the measure sponsored by Republican Rep. Mike Bell of Riceville.

The panel defeated a proposal by Democratic Rep. Jimmy Naifeh of Covington that would have denied any federally funded health care to people who declined to participate in the federal program.

State Attorney General Bob Cooper has questioned the constitutionality of Bell's measure because it could be pre-empted by federal law. Cooper said a related provision to require his office to mount a legal challenge to protect those who opt out of the law could run afoul of separation of powers rules in the Tennessee Constitution.

The companion bill passed the Senate in February.

Read SB3498 at: http://capitol.tn.gov

Associated Press. “Tenn. House to vote on 'Health Freedom Act'”. WRBC-TV (NBC). April 13, 2010 11:45 AM ET. Available online as of 2010-04-13.

This is a rush transcript from “On the Record,” April 19, 2010. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: You've heard about states suing the federal government over health care, but what if you want to sue government yourself? Turns out a lawyer from Tennessee wants to represent you. Joining us live is Van Irion, Republican congressional candidate in Tennessee.

Good evening, sir. And you have filed – have you actually filed a lawsuit on behalf of people?

VAN IRION, R - TENN., CONGRESSIONAL CANDIDATE: Hi, Greta. Yes, we have. About a week-and-a-half ago, we filed a lawsuit on behalf of one individual here in Tennessee, and we invited all Tennesseeans to join the lawsuit. Well, within a few days, we were inundated with requests from all over the country if – from people wanting to join the lawsuit. So we decided that we would let anybody in the United States, any company or citizen, join. And we now have 10,764, I think, as of a few minutes ago.

VAN SUSTEREN: All right, now, I don't want to get into the weeds, but people are going to think it's a, quote, “class-action” because of the number of people. This has not been certified as a class. And at this point, you have one person in court with about 10,000-plus that want to join, is that fair?

IRION: That's correct, yes.

VAN SUSTEREN: OK. Now, what is the cause of action? Is it like the state attorneys generals, that it's about the mandate and whether or not the federal government has the authority to essentially order people to have insurance?

IRION: No, actually, our lawsuit completely different in that it's challenging “Obamacare” in its entirety. Our primary argument is that nothing in the Constitution allows Congress the authority to regulate health care, period, and it's that simple.

Now, we understand that there's precedent from about 80 years ago from the Supreme Court that arguably – the commerce clause precedent that arguably grants Congress some authority to regulate in this area. And our argument is that that precedent needs to be changed, and this is the epitome of where you end up with that precedent. The commerce clause essentially granted – essentially destroyed the entire purpose of the Constitution, which was to grant only very limited authority to Congress.

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VAN SUSTEREN: Now, you're running – you're running for office. You want to be the Republican congressman from your district. Is this case in any way – I mean, are you finding that people are interested in your campaign more or – because of the – because of the case? Has this attracted more support for you? Is your community interested in it?

IRION: Absolutely. The reason we filed this case was because the Tennessee state attorney general announced that he would not join the other states that were representing their citizens in challenging the constitutionality of “Obamacare.” I was appalled by that. In fact, I became an attorney in large part because I wanted to protect the Constitution within the system. And we decided that – because we were being approached by people who wanted to file suit individually, we decided to do that. This is the people's suit. We're giving everybody in America an opportunity to join, whether their state attorney generals agree with the unconstitutionality of national health care or not.

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VanSusteren, Greta. “Health Care Reform Lawsuit On Behalf of the People”. On The Record (Fox News). April 20, 2010. Available online as of 2010-04-21.