The constitutional challenge to the Affordable Care Act started with a conference call months before the bill even became law.
Henry McMaster, then the attorney general of South Carolina, got 10 of his fellow Republican attorneys general on the phone in December 2009. He told them that he wanted to challenge the so-called "Cornhusker kickback" that was being proposed in the U.S. Senate to win the vote of then-Sen. Ben Nelson (D-NE). After they agreed to come onboard, the attorneys general sent a letter to congressional leadership and warned that they would challenge the provision if it made it into the law.
The kickback was taken out, but it gave then-Florida Attorney General Bill McCollum an idea, he told TPM recently in an interview. His office had already been studying whether the law's individual mandate and Medicaid expansion might be unconstitutional. McCollum called McMaster and asked if he wanted to join him in challenging the law's most crucial components.
McMaster agreed. Once again, they rounded up a few of their colleagues in other states, including then-Nebraska Attorney General Jon Bruning and Texas Attorney General Greg Abbott, for another call. Once the core group was formed, they started shopping the lawsuit -- being prepared for a law that hadn't actually been passed yet -- to others over the following months.
As more states came onboard, the chiefs of staff for the attorneys general began holding weekly conference calls to keep things running smoothly. Different states wanted to vet different briefs or write parts of the complaint. It wasn't always smooth -- Abbott's office scoffed at McCollum filing the lawsuit in Florida instead of Texas, according to Josh Blackman"s "Unprecedented" -- but the same day Obama signed the law, March 23, 2010, the states filed their lawsuit.
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