In the Texas Attorney General race, the Democratic opponent, Barbara Ann Radnofsky issues this reply and challenge to Attorney General Abbott's newest legal arguments concerning health care: 

Today, Attorney General Abbott abandoned his vague constitutional claims (Abbott December 30 press release re: Nebraska Compromise) for which he has no standing.  In a letter directed solely to Senator Hutchison and Senator Cornyn, Attorney General Abbott concedes his original due process arguments, "...may not be susceptible to challenge by the states ...".

Mr. Abbott threatens litigation, repeating a claim that Congress violated its own spending powers.

This is a legal loser.  If this argument had legal merit, where was Attorney General Abbott for the last seven years?  He could have been fighting for Texas against the unfair distribution of our federal highway gas tax dollars. Greg Abbott was not fighting for us then. He is fighting for his political future using states' rights as a wedge issue.  In a state where the Governor talks of illegal secession as the Attorney General speaks of states' rights, Texans are reliving more than 200 years of controversy.

On December 30, Mr. Abbott embraced a letter (co-signed by 13 State Attorneys General) claiming the Congress should heed a warning from the U.S. Supreme Court. The cases Mr. Abbott cited provide no warnings; the cases are the opposite. Each case is an example of judicial restraint, each emphasizing and validating the Constitutional power of Congress to spend money in aid of the general welfare with a "wide range of discretion permitted to the Congress." Helvering v. Davis, 301 US 619 (1937). The Helvering case championed specifically the power of Art 6, par 2 of the Constitution, that the Constitution and U.S. laws "made in pursuance thereof...shall be the supreme law of the land; and the judges in every state shall be bound thereby.." Supreme Court Justice Cardozo held in Helvering: "Whether wisdom or unwisdom in the scheme of benefits set forth in Title II (Old Age Benefits), it is not for us to say. The answer to such inquiries must come from Congress, not courts."

Having abandoned Helvering, Attorney General Abbott relies on So. Dakota v. Dole, 483 US 203 (1987), which relied on Helvering: "in considering whether a particular expenditure is intended to serve public purposes, courts should defer substantially to the judgment of Congress.".

In Helvering, Supreme Court Justice Cardozo references the historical debate on the rights of States in a decision which included the Supremacy Clause, the Tenth Amendment, the modern incorporation of western and rural states, the 1929 Stock Market Crash and the emergent conditions of the poor, the unemployed and aged and the federal government's obligations and abilities. Helvering is no warning to Congress to heed states' rights.

The Attorney General has now greatly shifted from challenging horse-trading in a bill version not enacted to the entire concept of health care reform and the role of the Tenth Amendment.  These issues have been briefed extensively by legal scholars and merit debate.  Therefore, I challenge Attorney General Abbott to a debate on these points.

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During her 30 year legal career, Barbara Ann Radnofsky, Democratic candidate for Texas Attorney General, has represented retirees, life-saving doctors, blood banks, children burned by lighters, families of murder victims, unfairly treated businesses: a wide variety of persons entitled to protection. Barbara Ann graduated with honors from the University of Houston and the University Of Texas School of Law.   She was honored as the Outstanding Young Lawyer of Texas in 1988 and for the past 17 years she has been listed in "Best Lawyers in America".

Prior to 2006, she was a partner at the law firm of Vinson & Elkins in Houston, where she served as head of the Alternate Dispute Resolution Section.  She was the first woman at Vinson & Elkins to have children as an associate and later attain partnership.  Texas has never had a woman Attorney General.  

Media Contact
Katie Floyd
713-357-3360
katie.floyd@radnofsky.com