As the Republicans in Congress and Donald Trump try to round up 50 votes to pass the Graham-Cassidy health care denying bill in opposition to pretty much everyone except themselves and their most rabid supporters, they are trying to bribe those senators who are as yet reluctant to support it, such as Alaska senator Lisa Murkowski, by carving out special provisions for that state that would make it more palatable to her.
But it appears, and I was not aware of this, that there are constitutional limits on that kind of shenanigans. Brian Galle, a professor of law at the Georgetown University Law Center, explains that there is something called the ‘uniformity clause’ that can be invoked in opposition to attempts to carve out arbitrary privileges and penalties to select goups.
Article I, Section 8 of the Constitution says “all Duties, Imposts and Excises shall be uniform throughout the United States.” Former Supreme Court Justice Joseph Story, writing in 1834, thought that the point of that provision was to prevent coalitions of states from ganging up, in Congress, to benefit themselves at the expense of others. While the “uniformity clause” has been watered down over time, it should still be enough to swamp the “Alaska Purchase” proposal.
This makes sense of course. But given their desperate desire to pass this bill, they might go ahead anyway. Of course, the law will be immediately challenged in court but they probably hope that the US Supreme Court will uphold their point of view. Like many issues of constitutionality, the situation is a little complex and, as Galle explains, there are Supreme Court precedents to consider and the result is hard to predict.
Marcus Ranum says
This sort of corrupt dealing goes back to the establishment of the nation. It’s how oligarchies always work: multiple tiers of laws for different constituencies. I’m sure the democrats would be a bit less bad, but the whole system is garbage.
From the latest I’ve heard, there are at least 3 Republican senators that will not vote for the bill, which would put it dead in the water. I have read some discussion of whether or not McConnell will put the bill up for a vote. He is in a lose-lose situation if he doesn’t have the votes. If he doesn’t put it up for a vote, he can be blamed for the bill’s failure. If he does put it up for a vote and it doesn’t pass, he gets blamed for not being able to deliver his party.