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  • The Nebraska Compromise and the Constitution

    Sen. Ben Nelson (D-NE)

    In a letter to House Speaker Nancy Pelosi (D-CA) and Senate Majority Leader Harry Reid (D-NV), dated December 30, 2009, the Attorneys General of 13 States have objected to the so-called Nebraska Compromise that reportedly won the crucial support of Senator Ben Nelson (D-NE) for the Senate health care takeover bill. The deal is said to involve an agreement that the Federal Government’s taxpayers will assume indefinitely the full share of the costs that Nebraska will incur as the result of the expansion of Medicaid that is one of the Act’s effects. The result is not only preferential treatment for Nebraska but it also hurts the rest of us because the other States will have to make up the difference.

    Such preferential treatment is constitutionally suspect; it cannot be reconciled with several important principles incorporated in the Constitution. The Founders would not have dreamed of taking a burden that all of the States should share and allocating it to only some of them. Likewise, they would not have seen the spending of taxpayer money for the benefit of only one State to be in the general interest. Instead, the Founders understood the notion that Congress can spend funds to “provide for the common Defence and general Welfare” to mean that the spending had to be for the general or national benefit, not for purely local or regional benefit. This understanding is reflected in veto messages from Presidents from Madison to Buchanan. In fact, the relatively free-spending ways of President John Quincy Adams contributed to his defeat by Andrew Jackson in the election of 1828.

    The absence of an explicit prohibition on something like the Nebraska Compromise does not mean that it does not violate the letter or spirit of the Constitution. In particular, it runs afoul of the concept of the States’ equal standing that is incorporated in the Constitution at several points. Duties, imposts, and excises are to be “uniform throughout the United States,” (Art. I, § 1, cl.1), the bankruptcy laws that Congress enacts must be “uniform . . . throughout the United States,” (Art. I, § 8, cl.4), and the ports of one State cannot be given any “preference” with respect to regulation or taxation over those of other States (Art. I, § 9, cl. 6). In addition, there are limits to the conditions that Congress can put on States when they enter the Union because they do so on an “equal footing.” Then, once part of the Union, the States enjoy an “equal sovereignty” that can be taken away only in limited circumstances. Put simply, all of the States, not just 49 of them, are in this together.

    We no longer think like the Founders when thinking about the ability of Congress to spend money. Moreover, the Supreme Court has chipped away at the clarity of the Uniformity and Ports Preference Clauses. Even so, there is something more than unsightly about the Nebraska Compromise, something beyond the general run of legislative logrolling and pork swapping. That something is the gnawing sense that the Attorneys General are right to question whether the Nebraska Compromise is actually unconstitutional or just violates the principles that it embodies.

    Posted in Legal [slideshow_deploy]

    3 Responses to The Nebraska Compromise and the Constitution

    1. Dave H, Culver City, says:

      "The absence of an explicit prohibition on something like the Nebraska Compromise does not mean that it does not violate the letter or spirit of the Constitution."

      This sounds way too much like Roe v. Wade's "penumbra" argument. Which is to say, it stinks.

      A law either violates the letter of the Constitution or it doesn't. "Spirit" is just mushy, liberalistic jargon for getting the result you want. Like "fairness". Or "Social justice."

      It violates the General Welfare Clause, or maybe the Equal Protection Clause (this Court is good at getting stuff it wants out of this clause, see Bush v. Gore). Or it doesn't. Plain and simple. I hate the Cornhusker Kickback and hope it's held to be unconstitutional. But I hate hazy, "penumbra/spirit" arguments even more.

    2. jdalabama says:

      There's nothing hazy about it. The Constitution clearly requires equal treatment of all states.

    3. Bob R, Portland,ME says:

      Tyranny!! Who do the Pelosi's and Reid's think they are? They have short memories. The 1994 swing in power in the house and senate during Clinton's first term will PALE in comparison to what is coming this November. This wildly liberal tyrannical administration is self destructing because they are sooooo out of touch with the majority of americans. Unbelievable.

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