Days after Georgia Attorney General Thurbert E. Baker declined Governor Sonny Perdue’s request to file a lawsuit challenging the constitutionality of the recently enacted federal health care reform legislation, Perdue announced that he would appoint a special prosecutor to pursue the litigation on his behalf. The identity of the special counsel, who will work pro bono, has yet to be announced.
Baker announced that he does not object to Perdue’s appointment of special counsel. “We’re pretty clear under Georgia law that if and when the attorney general declines to pursue a course of litigation, then the governor can appoint counsel and represent him in that matter,” Baker stated.
The Georgia law to which Baker refers derives, ironically, from an earlier legal stand-off between Perdue and Baker. That case involved Baker’s refusal to honor Perdue’s demand to halt litigation aimed at reviving a Democratic-leaning state Senate map. The Georgia Supreme Court decided 5-2 in Baker’s favor in that case, and issued an opinion which included the following statement: “In the event the Attorney General refuses to take or file [an] action within a reasonable time after having been directed by the Governor to do so, the Governor is authorized to appoint a special attorney general to carry out the [lawsuit].” That’s the scenario Perdue is faced with now.
Meanwhile, White House officials spoke confidently of their ability to defeat constitutional challenges to the health care reform legislation. They contend that the commerce clause confers power upon Congress to enact legislation like the health care reform bill, comparing the law–and the lawsuits challenging it–to others that have been upheld by the Supreme Court in the face of similar challenges, such as the Voting Rights Act.
Two lawsuits challenging the constitutionality of the health care reform legislation have been filed so far. We’ll soon find out whether the White House’s confidence is justified.
