State legislators pushing back against insurance requirement

A great deal of what the U.S. government currently does is unconstitutional, and probably the entirety of Obamacare is unconstitutional. But the most unconstitutional part of Obamacare is the requirement that all individuals in the United States must buy health insurance or pay very substantial financial fines. Where in the U.S. Constitution does the federal government have the power to tell individuals to purchase anything? Other constitutional usurpations, ranging from the overturning of vagrancy laws to the outlawing of school prayer to the imposition of federally mandated “drug free zones” near schools, have had some kind of color of constitutionality, specious though it was, to hide under, such as provided by the Commerce Clause and the “privileges and immunities” and “due process” clauses of the Fourteenth Amendment. But there is not the slightest hint of the remotest suggestion in the U.S. Constitution of a federal power to force people, on penalty of fine, to buy something. The passage of such a measure would turn us into an undisguised dictatorship. Even under our hideously distorted constitutional system and with our out-of-control federal judges, this would not stand.

So it’s heartening to learn, as reported in today’s New York Times, that many state legislatures are considering measures that would outlaw the insurance requirement in their states.

September 29, 2009
In Some States, a Push to Ban Mandate on Insurance

ST. PAUL—In more than a dozen statehouses across the country, a small but growing group of lawmakers is pressing for state constitutional amendments that would outlaw a crucial element of the health care plans under discussion in Washington: the requirement that nearly everyone buy insurance or pay a penalty.

Approval of the measures, the lawmakers suggest, would set off a legal battle over the rights of states versus the reach of federal power—an issue that is, for some, central to the current health care debate but also one that has tentacles stretching into many other matters, including education and drug policy.

Opponents of the measures and some constitutional scholars say the proposals are mostly symbolic, intended to send a message of political protest, and have little chance of succeeding in court over the long run. But they acknowledge that the measures could create legal collisions that would be both expensive and cause delays to health care changes, and could be a rallying point for opponents in the increasingly tense debate.

“This does head us for a legal showdown,” said Christie Herrera, an official at the American Legislative Exchange Council, a group in Washington that advocates limited government and free markets, and that earlier this month offered guidance to lawmakers in more than a dozen states in a conference call on the state amendments.

So far, the notion has been presented in at least 10 states (though it has already been rejected or left behind in committees in some of them), and lawmakers in four other states have said they will soon offer similar measures in what has grown into a coordinated effort at resistance. (Arizona, which has placed the amendment on its ballot in 2010, seems the furthest along.)

Here in Minnesota, as in many of the other states, the move to amend the State Constitution is being driven by a handful of Republican lawmakers. The proposed amendment itself does not advocate some particular alternative plan, but sets what its authors see as ground rules for what any future health care system should—and should not—include.

“All I’m trying to do is protect the individual’s right to make health care decisions,” said State Representative Tom Emmer, a Republican. “I just don’t want the government getting between my decisions with my doctors.”

Many who favor a federal overhaul of health care say it can be affordable only if nearly everyone is required to carry insurance, but the efforts by these state lawmakers actually predate the Obama administration and the current federal health care debate.

Proposed constitutional amendments began cropping up after 2006, when Massachusetts enacted a sweeping state measure meant to create nearly universal health coverage for residents. Elsewhere, some leaders—opposed to the possibility of insurance mandates or government-run systems—began suggesting constitutional amendments to block such measures from their own states.

In Arizona, with help from Dr. Eric Novack—an orthopedic surgeon who says his intent was not “some grand secessionist plot” but merely a health care overhaul with protections for individuals’ rights—an amendment first went before voters in 2008. It was defeated, but by fewer than 9,000 votes among more than two million cast.

This year, Arizona’s Legislature, controlled by Republicans in both chambers, voted to put the question back on the ballot in 2010.

Few in the public seemed focused on health care a year ago, those involved in Arizona’s ballot question said, but the recent debate over a federal overhaul has changed all that, and proponents of the amendment believe that will improve its chances both in Arizona and in other states, where similar efforts have taken root.

The federal proposals, though, have also changed the potential fallout if such amendments were to pass.

Clint Bolick, litigation director at the Goldwater Institute, a conservative research group based in Arizona that favors free enterprise, and who has helped lead Arizona’s efforts, said he believed the inevitable “legal clash”—if the federal government adopts a health care law and if states change their constitutions—was winnable for the states.

Although the United States Constitution’s supremacy clause ordinarily allows federal law to, in essence, trump a state law that conflicts with it, Mr. Bolick said that was not always the case, depending on “the strength of the state interest.” Mr. Bolick said he viewed two recent Supreme Court cases, related to an education question in Arizona and a utility district in Texas as indications that the current court might be open to such a state claim.

But several other legal experts said they saw little room for such a challenge. “States can no more nullify a federal law like this than they could nullify the civil rights laws by adopting constitutional amendments,” said Timothy Stoltzfus Jost, a health law expert at Washington & Lee University School of Law.

Mark A. Hall, a law professor at Wake Forest University who has studied the constitutionality of mandates that people buy health insurance, said, “There is no way this challenge will succeed in court,” adding that the state measures seemed more “sort of an act of defiance, a form of civil disobedience if you will.”

Even Randy E. Barnett, a Georgetown law school professor who has written about what he views as legitimate constitutional questions about health insurance mandates, seemed doubtful.

“While using federal power to force individuals to buy private insurance raises serious constitutional questions,” Professor Barnett said, “I just don’t see what these state resolutions add to the constitutional objections to this expansion of federal power.”

In Minnesota, even before the prospect of a court clash, Mr. Emmer appears to have an uphill battle ahead. Before voters can consider amending the state’s Constitution, Mr. Emmer needs approval from the Legislature, which is dominated by Democrats. He has offered the Health Care Freedom Act in years past, but it has never made its way to a vote, and Margaret Anderson Kelliher, a Democrat and speaker of the House who is also among the wide field of candidates for governor, said last week that she doubted it stood much of a chance this time either.

“Most legislators are interested in improving the health of Minnesotans, and how to do more health care reform,” Ms. Kelliher said. “No one thinks the answer is a states’ right movement.”

Still, Mr. Emmer, who is a candidate for governor, says he is hopeful. He emphasizes that such an amendment—regardless of court battles over a federal plan—would certainly spare Minnesotans from the potential downsides of some future state health care plan.

And this whole amendment notion, he said, would not prevent anyone from taking part in a federal health program; it would merely block people from being forced to do so.

As for legal experts’ discounting the states’ chances of trumping a federal plan, Mr. Emmer seemed unconvinced.

“They’re essentially saying that state constitutions are meaningless,” he said, “and I disagree.

“And tell me where in the U.S. Constitution it says the federal government has the right to provide health care? This is the essence of the debate.”

Emma Graves Fitzsimmons contributed reporting.

- end of initial entry -

Mark Jawsario writes:

If Obamacare is unconstitutional, then how does that gel with our being forced by the government to buy into Social Security? What is the difference?

LA replies:

That’s a good question.

A. Zarkov writes:

Mark Jawsario asks: “If Obamacare is unconstitutional, then how does that gel with our being forced by the government to buy into Social Security? What is the difference?”

You pay the FICA tax as a result of your employment. It’s a tax on a transaction between the employer and the employee. On the other hand, the “mandate” tax associated with Obamacare is a tax on your mere existence: you are, therefore we tax. This is clearly outside the authority of the federal government as defined by the U.S. Constitution. The authority for the expanding power of the federal government stems from the Commerce Clause to the U.S. Constitution as interpreted by the Supreme Court in the 1942 Wickard v. Filburn decision. Farmer Filburn cultivated wheat on an amount of land that exceeded his allocation under the 1938 Agricultural Adjustment Act. Even though Filburn grew wheat for his own use, the Supreme Court decided he was engaged in interstate commerce! But notice that Filburn had to actually do something: he grew wheat. He did more than simply exist. To justify the mandate tax under the Commerce Clause, we would need to believe that existing is tantamount to engaging in interstate commerce. If this is so then my cats are engaged in interstate commerce along with my furniture. In other words, “interstate commerce” is drained of all meaning. I suspect even morons and most lunatics could not accept such reasoning; one has to be a creature like Ruth Bader Ginsburg to buy into something like this. Of course the states could levy an existence tax as a kind of “capitation tax” if they so desired, but the federal government cannot because it powers are enumerated.

LA replies:

I was about to say: what about self-employed individuals? But then I realized that of course it’s the same thing: it’s a tax on income.

Posted by Lawrence Auster at September 29, 2009 08:24 AM | Send

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