By Tom Curry National affairs writer
msnbc.com
updated 1/5/2010 10:06:45 AM ET 2010-01-05T15:06:45

Claim: The Senate bill unconstitutionally exempts Nebraska from paying for a Medicaid expansion.

In the final bargaining over the Senate's insurance bill, Democratic leaders agreed to exempt one state, Nebraska, from the cost of expanding Medicaid eligibility. Sen. Ben Nelson, the centrist Democrat who has represented Nebraska in the Senate since 2001 and is up for re-election in 2012, was a crucial vote needed in order to get the 60-vote supermajority to ensure passage of the bill. While the 49 other states will need to pay a share of the cost of covering the 20 million new people who'll be eligible for Medicaid, Nebraska's cost will be paid by the federal taxpayers. Nebraska Gov. Dave Heineman has criticized the exemption and Nelson has offered to get it removed from the bill if Heineman wants. Will the exemption pass political and constitutional muster?

Fact or fiction?
Unclear. Critics of the deal say it violates the principle of equal treatment of the states by forcing other states' taxpayers to bear Nebraska's added costs. "The inequity of this provision is astonishing," said Connecticut Gov. Jodi Rell, a Republican. One Democratic governor, Ohio's Ted Strickland, said "It seems a little unseemly to me" and accused Nelson of holding reform "hostage in order to get something that was so selfish for his own state." Attorneys general in 13 states said they might sue to challenge the provision. The Privileges and Immunities Clause of the Constitution might seem to offer a basis for a suit, but modern interpretations reject the idea that the clause means Congress must treat citizens of different states equally. It remains to be seen whether the exemption will remain in the final version of the bill.

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