Sen. Nelson's 'Cornhusker Kickback' raises constitutional questions

SEN. Ben Nelson, D-Neb., exacted a special price for his vote on the Senate health-care bill. Opening up the Medicaid program to 15 million more Americans over the next decade will cost the states billions of dollars — but not Ben Nelson's state. For Nebraska, the cost, estimated at $100 million through 2016, will be paid by the federal government.

The Republicans called this the "Cornhusker Kickback." It is a cute way to label it corruption — which it is. It is the bending of a federal law in order to buy the vote of one legislator.

Federal law is supposed to be uniform. It's a concept that shines through several places in the Constitution, which calls for a "uniform rule of Naturalization" and "uniform Laws on the subject of Bankruptcies."

In the federal income tax, the Form 1040 instructions do not have a special tax table for Nebraska. Tax rates are different for different incomes, and affect rich and poor states differently, but the rates are the same for all the states.

The Constitution says, "All Duties, Imposts and Excises shall be uniform throughout the United States."

Uniform — that word, again.

The most sweeping power in the Constitution is the regulation of commerce. After granting that power, the Constitution makes it uniform by saying, "No Preference shall be given by any Regulation of Commerce or Revenue to the ports of one state over those of another."

No preference. All states to be under the same rule.

Henry McMaster, South Carolina's attorney general, suggests that the "no preference" clause might make the Cornhusker Kickback unconstitutional. He has circulated a letter about it, signed by several other attorneys general, including this state's chief legal officer, Rob McKenna.

The signatories are all Republicans and speak with political motive. Of course, the Democrats also speak with political motive. Still, there are facts, and one of them is that the Cornhusker Kickback is preferential treatment of one state in order to buy a vote from that state's senator.

Whether a court would strike it down we do not know. It would be delightful if one did.