Gov. Haley R. Barbour recently wrote a letter to Attorney General Jim Hood asking him to lead Mississippi's efforts to join Florida and other states in filing suit against the federal health care legislation, or if Hood declined to do so, requesting he authorize Barbour as Governor to hire counsel to represent Mississippi.

Hood responded he would first wait until President Barack Obama signed both the initial and the reconciliation bill, and then examine them before making a decision. Hood replied, "These are complex pieces of legislation totaling more than 1,000 pages. There are potentially many constitutional issues raised by these bills." Hood said he would consult constitutional scholars within the university system, but he had already determined, "These matters are too complex, too time consuming, and too expensive to make an uninformed decision on potential constitutional issues that will more than likely be in litigation in various state and federal courts over the next several years." He further directed Barbour that while Hood's office employed a "reasonable time to review these complex" issues, he did not authorize the Governor "to engage or employ counsel, file suit, or intervene in pending litigation."

Barbour replied, "As a statewide elected official, I swore an oath that I would 'faithfully support the Constitution of the United States and the Constitution of the State of Mississippi'" stating his belief "that a violation of the Constitution should never go unchecked obligate[s] me to ensure Mississippi challenges the healthcare reform law."

Facing reelection in 2011, Hood must make both policy and political decisions regarding the request. Barbour would tell him good policy makes good politics, but we will see how Hood decides.

Meanwhile, fifteen other states have already filed lawsuits challenging the newly enacted legislation.

Barbour wishes Mississippi to join into the Florida lawsuit along with Alabama, Louisiana, Colorado, Idaho, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington and Indiana.

Florida Attorney General Bill McCollum and his colleagues from these other states - not all Republicans - argue the health care bill, "represents an unprecedented encroachment on the liberty of mandating that all citizens and legal residents of the United States have qualifying healthcare coverage or pay a tax penalty. The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage. By imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution. In addition, the tax penalty required under the Act, which must be paid by uninsured citizens and residents, constitutes an unlawful capitation or direct tax, in violation of Article I, sections 2 and 9 of the Constitution of the United States."

They argue against the legislation's "unprecedented encroachment on the sovereignty of the states" in regards to Medicaid, budgets and unfunded mandates; and claim it violates "the core constitutional principle of federalism" and "exceeds the powers of the United States and violates the Tenth Amendment to the Constitution."

Virginia Attorney General Ken Cuccinelli has filed a separate narrower lawsuit. Earlier this year, Virginia enacted a law providing, "No resident of this Commonwealth...shall be required to obtain or maintain a policy of individual insurance coverage." Cuccinelli argues federal supremacy does not trump Virginia law because the federal law is unconstitutional. As the federal act contains no severability provision, the Court must throw out the entire legislation. He notes the U.S. Senate in debate expressed concerns the legislation could overreach the Constitution's Commerce Clause and sought an opinion from the Congressional Research Service. CRS replied, "Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this Clause to require an individual to purchase a good or a service."

Citing early Supreme Court decisions on the scope of legislative powers, Cuccinelli argues that Congress does not have the authority to demand "citizen-to-citizen subsidy and subsidy of insurance companies by an individual mandate."

While Texas has filed along with Florida, it too - like Virginia - finds itself in specific conflict with the federal law. Texas law prohibits taxpayer dollars from funding sexual enhancement drugs for convicted child sex offenders. A U.S. Senate amendment to the health care bill to strip such funding failed. Texas could challenge the federal health care law's use of taxpayer dollars to provide Viagra to convicted pedophiles.

Perhaps in his exhaustive research, Hood will determine specific conflicts like Virginia or Texas in Mississippi law, or he may decide there is a general objection like the other dozen states. Hood's challenge is to argue his case in multiple courts. Whether he believes there are Constitutional challenges to make before judges in a federal court, he also faces an electorate jury in the court of public opinion.

Brian Perry is a partner in a public affairs firm. Contact him at