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Montana House Republican lawmakers heartily endorsed a plan Tuesday that would force the state's attorney general to join a lawsuit challenging the federal health care law, a move that sets up a possible showdown with an executive branch controlled by Democrats.
The plan passed in an initial vote and faces one more largely procedural vote before going to Democratic Gov. Brian Schweitzer -- who has not said whether he will sign it. Attorney General Steve Bullock, also a Democrat, has also been mum on how he would respond if the legislation became law.
The Legislature's attorney has said orders like that may be unconstitutional due to the separations of powers clause, a point Democrats have highlighted.
"All along, we've said we don't believe it's a good idea to spend taxpayer resources on a lawsuit more about partisan politics than constitutional law," Bullock spokesman Kevin O'Brien said. "While even the Legislature's own lawyer has called this proposal unconstitutional, bills aren't law until passed by both houses and signed by the governor, and we'll withhold further comment until then."
A Schweitzer spokeswoman said Tuesday that they won't comment on the measure before the governor gets the bill and issues his decision on the matter.
Schweitzer, a Democrat, has criticized the federal health care law but has never advocated that the state sue over it. He's also publicly mocked Republicans running the Legislature for advocating dozens of bills that have the potential to be deemed unconstitutional.
Republicans argued again Tuesday that it's the federal health care law -- not their legislation -- that is unconstitutional.
"It's just about our constitutional rights and our voice for the people," Rep. Bill Harris, R-Mosby, told colleagues during Tuesday's debate over the proposed order. "Keep that in mind and this won't be hard."
The House endorsed the measure along party lines, 68-32.
Republican state Sen. Jason Priest of Red Lodge, the sponsor of the measure, said that the Legislature has issued similar orders in the past and none have been determined by a court to be unconstitutional.
The Florida lawsuit that Montana Republicans want to join pits 26 states against the federal government over the health care overhaul that President Barack Obama signed last year. A judge has ruled the measure unconstitutional, but said the states must continue implementing it while the case makes its way through the courts.
Three other federal judges have upheld the law and a fourth in Virginia has ruled against it, but that ruling is also on hold until appeals are heard. The issue is widely expected to wind up before the U.S. Supreme Court.
Democrats argued that lawmakers are overreaching by trying to sue over congressional actions. They argued the health care reform was the primary issue in the 2008 elections, leading to passage of the bill by Democrats in Washington, D.C.
For Republicans to sue over it now will lead to other partisan lawsuits in the future when congressional and legislative majorities shift, they argued.
"Congress is always going to be passing something that offends one of us," said Rep. Mike Menahan, D-Helena. "The attorney general will be ordered all the time to sue over something."