Posted on Mon, Aug. 16, 2010
S.C. could join states in lawsuits on immigration, health care, nuclear site
Other states sue on health care, immigration
By Tim Smith
McClatchy Newspapers

S.C. Attorney General Henry McMaster could spend almost $700,000 in legal costs joining with other states to battle the federal government on the issues of Yucca Mountain, Arizona's immigration law and this year's federal health care reform act.

McMaster said the money is being well-spent, even at a time of severe budget shortfalls, and he believes the states will eventually succeed in each case.

"Somebody has got to stand up, so that's what we're doing," he told The Greenville News.

Critics doubt any of the legal actions will succeed and say they are being waged at least in part for political reasons.

Sen. John Land, leader of the S.C. Senate Democrats, described the Arizona and federal health care actions as a "waste of time and money."

"I think our attorney general has enough to do otherwise." he said.

Larry Sabato, a political science professor who directs the University of Virginia's Center for Politics, said almost all the attorneys general who have joined to fight the legal actions are Republicans at odds with the administration of President Obama.

"It's perfectly within their purview," he said of the lawsuits. "They're permitted to do it. But of course there is a political and ideological motive. I'm not saying they don't believe it. I'm not saying the suits aren't justified. But of course there is a political motive."

Professor Charles Fried of Harvard Law School, a former solicitor general under President Reagan, says the health care lawsuit is politically based.

"I do think the constitutional argument is a joke, not serious," he said.

Sen. Larry Martin, a Pickens Republican who sits on the state Senate Judiciary Committee, disagrees that the lawsuits are motivated by politics.

"Those kinds of issues ultimately are ripe for the court to review and make a final determination," he said.

McMaster, who once led the state's Republican Party and was an unsuccessful gubernatorial candidate earlier this year, denied politics were involved in any of the lawsuits.

"We've had multiple efforts at the same time quite regularly," he said of federal litigation.

The three issues that South Carolina has joined other states on are:

The federal health care reform act, nicknamed "Obamacare" by detractors, signed into law earlier this year. Among other provisions, the law would require the purchase of private health insurance. Those who fail to do so could face financial penalties.

McMaster joined his counterparts in 19 other states in filing a lawsuit to strike down the new law as unconstitutional, arguing the law violates states' rights and forces states to spend too much. They also argue the U.S. Constitution doesn't give Congress the right to force citizens to purchase anything.

The opening of Yucca Mountain, the proposed federal repository in Nevada for nuclear waste. The controversial site had already been the target of lawsuits before Obama took office and ordered officials to withdraw the federal government's permit to use the site.

Aiken County, South Carolina and other states believe Yucca Mountain should be used for nuclear waste and have asked a federal appeals court to order the federal government to proceed with its permit.

The enactment of Arizona's new immigration law, which among other things would require police there to check the legal status of immigrants while enforcing other laws.

The Obama administration asked a federal judge to halt enforcement of the new law, arguing it interfered with the federal government's jurisdiction and could cause harassment of legal immigrants.

Nine states joined to ask the court to side with Arizona.

The judge ruled against Arizona last month, issuing a preliminary injunction against the new law's most controversial provisions. The issue is due to be argued before an appeals court in November.

Experts are divided on the states' chances.

Mark Hall, a professor of law at Wake Forest University and a national expert on the new law, said he doesn't believe the states' arguments are compelling.

"In my view, the prospects are slim," he said.

"The main argument is the new federal law requires states to shoulder a large financial burden. And that simply is not factually true.

The federal government pays for most of the cost. And getting more people onto federally subsidized insurance would actually reduce the cost to the states and the communities for treating the uninsured."

But Randy Barnett, a Georgetown Law School professor who teaches constitutional law, says a recent refusal by a federal judge to dismiss a similar lawsuit filed by Virginia means the states' case will have to be taken seriously.

"This was a huge positive step toward a successful challenge," he said.

"Much of what the judge said was very encouraging for the challengers, primarily because the judge said this was an unprecedented use of either the commerce or tax power."

At the heart of the issue, he said, is an expansion of the government's power, something that likely will be decided at the U.S. Supreme Court.

The 20 states involved in the case have hired a private law firm, but McMaster said South Carolina's share of the legal costs won't exceed $6,000.

Potentially more expensive, he said, is the Yucca Mountain litigation.

Lawmakers have authorized up to $665,000 to spend on the case, though McMaster doesn't believe the final bill will total that much.

His office has hired a Columbia lawyer, Kenneth Woodington, who worked for three previous attorneys general, to handle the litigation, he said.

Gov. Mark Sanford has said without a depository, utility customers in South Carolina will continue to pay add-on fees on their bills that are designated to pay for the storage site.

In addition to 4,000 metric tons of spent fuel from the state's seven nuclear reactors being temporarily stored in the state, South Carolina also is home to the federal government's Savannah River Site near Aiken, a former production facility for nuclear weapons parts that is turning high-level radioactive waste into glass stored in canisters.

"This is an economic development question, a health and safety question, it's an energy independence question and a national security question," McMaster said.

Tom Clements, an environmentalist who for years has specialized in nuclear issues and is running as the Green Party candidate against U.S. Sen. Jim DeMint, said Yucca Mountain's storage as currently planned cannot handle all of the high-level waste at SRS and other U.S. Department of Energy facilities.

He and McMaster agree that the U.S. Nuclear Regulatory Commission is likely to side with Obama in ruling on whether the government can pull its license application to operate Yucca.

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