Take Florida, for example, where the two Republican candidates for Senate have each been jumping to oppose the legislation. Marco Rubio, the insurgent-turned-frontrunner in the primary, has long criticized the measure, and already advocating repeal in the days before it passed: "If there's only one vote to repeal this bill in the Senate, it will be mine." His rival, Gov. Charlie Crist, whose primary run has been seriously damaged by his support for the 2009 stimulus bill, is now supporting state Attorney General Bill McCollum's lawsuit against the health care bill, and his campaign says that he will work for repeal in the Senate.
Thus far, 14 state attorneys general (13 Republicans, plus lone Democrat Buddy Caldwell of Louisiana) are challenging the health care bill as well as at least three potential presidential candidates.
It's interesting to note that of the 14 attorneys general, four of them are also currently running for governor in their respective states: Bill McCollum of Florida, Mike Cox of Michigan, Tom Corbett of Pennsylvania, and Henry McMaster of South Carolina. Cox and McMaster are running in heavily contested primaries, while McCollum and Corbett have their nominations essentially sewn up. And in Florida, the two Republican candidates for Senate have both been jumping to oppose the legislation.
On a conference call with reporters last night, a senior White House official pointed out that many of the attorneys general challenging the health care law are "also seeking higher office in some way shape or form. This is a pretty good way to get on TV." The official said there are a "lot of politics at play here" with the lawsuits.
Appearing on Hardball on Tuesday, Cox brushed off the suggestion that he might be using the lawsuit to advance his position in his campaign for governor: "Well, Chris [Matthews], I am running for governor, and Nancy Pelosi is running for her seat, and Harry Reid is running for his seat as well this year." (Via Nexis)
Texas Attorney General Greg Abbott even went so far as to say: "If this legislation is upheld, it will mean that the Constitution as we know it no longer exists."
Virginia Attorney General Ken Cuccinelli is adopting a position that his state's new law against the individual mandate should trump the federal one -- hearkening back to the pre-Civil War position of nullification, though in this case Cuccinelli is also saying that the federal government's new law is unconstitutional: "The health care reform bill, with its insurance mandate, creates a conflict of laws between the federal government and Virginia. Normally, such conflicts are decided in favor of the federal government, but because we believe the federal law is unconstitutional, Virginia's law should prevail."
Former Gov. Mitt Romney (R-MA), who sought the Republican nomination in 2008 and appears to be laying the groundwork for another campaign in 2012, has also called the bill unconstitutional. As we've noted, Romney has his own potential vulnerabilities on this, because his own health care program in Massachusetts is very similar to the final Obama bill. It appears that Romney's argument for the unconstitutionality of the Obama bill is that the federal government is not properly empowered to take such action -- in fact, Romney is still standing by the premise of the individual mandate.
Former Gov. Mike Huckabee (R-AR), another unsuccessful 2008 Republican candidate who might end up mounting another bid, was way ahead of the curve on this one. Huckabee declared at least as early as December 2009 that the bill was unconstitutional -- going so far as to compare the individual mandate to the poll taxes that used to be employed to prevent African-Americans in the South from voting.
In Minnesota, where Republican Gov. Tim Pawlenty is seemingly preparing to run for president, this state has not joined in because the attorney general is Democrat Lori Swanson. However, Pawlenty has taken the step of formally asking Swanson to challenge the bill. Swanson's office has thus far declined to do so, saying that they need time to review the bill itself -- but it should be noted that Swanson's campaign site has called for universal health care, and for supporting President Obama on the issue. So Pawlenty might not get the response he would like, though he has at least made his own statement.
So will challenging the bill's constitutionality remain a trend for the GOP? One GOP source told TPM that the question of unconstitutionality won't become a litmus test for Republican candidates in general, but calling for repeal very much will.
"I'm not seeing it [unconstitutionality] as a litmus test yet for mainstream congressional candidates, and I would discourage against it," the source said. "Getting too much into the process is a distraction from the substance of the tax hikes, Medicare cuts and mandates. But the push to repeal the bill is definitely becoming a litmus test for candidates in contested GOP primaries."
Additional reporting by Christina Bellantoni.