Masto won’t file health care lawsuit

Nevada Attorney General Catherine Cortez Masto won't take legal action to block implementation of new federal health reform legislation, leaving Gov. Jim Gibbons to fight the battle.

On Tuesday, Masto, a Democrat, told Gibbons, a Republican, she disagrees with his contention the Patient Protection and Affordable Care Act is unconstitutional and said any legal fight against it would be futile.

Gibbons had asked Masto to join 14 other states that have challenged the law in court, mainly arguing that the mandate for citizens to buy insurance or pay a fine is unconstitutional and that the federal law will foist onto Nevada $613 million in additional Medicaid costs from 2014 to 2019.

Masto says those complaints don't add up to a sound basis for a lawsuit.

"There is no practical reason for Nevada to join the litigation, absent a clear and separate legal interest that Nevada has apart from those other states," Masto wrote. "We are not aware of such a reason and you have not directed our attention to one."

She said joining the lawsuit would be a waste of money. If other states succeed in blocking the legislation through the U.S. Supreme Court, the ruling would apply to Nevada even if the state were not among the plaintiffs.

"Therefore, Nevada can ride for free at this time by allowing other states to foot the bill," she wrote.

Gibbons responded by saying he is disappointed Masto "refused to fight for the rights of Nevada's citizens."

He vowed to press forward without her but did not specify how.

"I will not surrender to this federal assault and I will not succumb to political pressure while the rights of Nevada citizens are trampled," Gibbons said in a statement.

The dispute with Masto comes as the unpopular Gibbons seeks to revive his standing with voters to overcome challenger Brian Sandoval by the June 8 primary election.

By fighting against the health care overhaul law, Gibbons, whose tenure has been plagued by personal travails, can keep his name in front of Republican voters who share his disdain for the act.

Gibbons trails Sandoval in campaign contributions. Sandoval also supports a lawsuit.

"Gibbons can't pay for media right now, so he has to earn every bit he can get," said one Republican strategist who did not want to be identified.

There could be political stakes for Masto. A similar dispute in Georgia has created political headaches for the attorney general there.

Republican state Rep. Mark Hatfield is calling for the impeachment of Democratic Attorney General Thurbert Baker on the basis that Baker "abdicated his authority and has committed an act against the state of Georgia" by refusing to file a lawsuit to block the law, according to The Associated Press.

"The Nevada Attorney General will likely catch similar political heat over her decision in the months to come," former Gibbons legal counsel Josh Hicks wrote on his blog, Of Note Nevada.

Southern Nevada political consultant Ronni Council, who represents Democrats and supports the overhaul, said Masto's legal stance on the issue will not endanger her politically.

That is because, Council said, Masto's argument that the case would be a waste of money is likely to appeal to voters.

"Clearly this is a case that is unnecessary right now," Council said. "If (Masto) were trying to be political, she would jump on it."

Council thinks Gibbons could "push his numbers up temporarily" with the fight but only until voters understand the futility of the case.

Democrats have highlighted what they call the futility of a potential court challenge to the new law, which is expected to provide another 32 million Americans access to health care.

Lawyers for the Center for American Progress, a think tank run by John Podesta, former chief of staff to former President Bill Clinton, recently panned efforts by Republicans to thwart the law through the courts.

"Frankly, they are embarrassing from a legal standpoint," attorney Simon Lazarus said of the states' lawsuits during a conference call the center organized to discuss the issue with reporters. "They are totally frivolous. I'm confident they will be summarily dismissed by even the most conservative federal judges."

Other legal experts disagree.

Robert Kaufman, a professor of public policy at Pepperdine University, opposes the health care law and argues that the attorneys general trying to fight it can make a strong case. He contends it is reasonable to argue the insurance mandate violates the 10th Amendment, which gives states the power to regulate anything the Constitution doesn't specify is within the federal government's domain.

"This is not a frivolous case that on its face is something that will fail. This is a serious constitutional point," he said.

But he added the courts have a history of giving Congress broad leeway when it comes to regulation. The leeway usually falls under Congress' authority to regulate interstate commerce.

With Masto refusing to take the case, there is a question of whether Gibbons is authorized to hire outside counsel to do the legal work. He has said several attorneys, including Republican attorney general candidate Jacob Hafter, have offered to do so for free.

Masto has cited Nevada laws that suggest only the attorney general or her designees can represent the state in legal actions. Others, such as Hicks, have identified loopholes that suggest Gibbons could use outside attorneys.

Observers have said such a dispute between a Nevada governor and attorney general is unprecedented.

"We're in uncharted legal territory in Nevada," Hicks said.

Contact reporter Benjamin Spillman at bspillman@reviewjournal.com or 702-477-3861.