Since the passage of President Obama’s health care law earlier this year, there has been a backlash across the country from citizens and states in response to the individual mandate to purchase health insurance. Twenty-two states’ attorney generals have joined a lawsuit against the federal government on the issue.
Missouri passed a ballot initiative against the mandate, and Arizona, Colorado, and Oklahoma will all have similar constitutional amendments on the ballot this fall.
According to individuals involved in these legal and ballot responses at the state level, the response from citizens has given them hope the individual mandate will ultimately be rejected by the courts. Failing that, they hope the mandate will prove so politically unpopular Congress will be forced to reconsider it.
Grassroots Campaign in Missouri
Missouri State Senator Jane Cunningham helped lead the effort in favor of Missouri’s health care amendment, which passed by 71 percent of the vote.
“In Missouri, this started with citizens because they were worried and frightened. They began contacting their legislators and forming groups,” Cunningham said. “We at the legislature decided how we could best respond and decided to use the American Legislative Exchange Council’s model bill.”
“When we introduced it, citizen groups networked—they rallied multiple times at the capitol, emailed, and called. They didn’t let off until we responded,” Cunningham said. “They started a grassroots campaign like I’ve never seen before, from the bottom up, designing their own bumper stickers, banners, flyers, and held their own parades.”
“The people,” Cunningham said, “came to the polls resolute.”
Small Businesses Join Fight
A key addition to the legal fight has been the National Federation of Independent Business. Karen Harned, executive director of the NFIB’s small business legal center, said the organization made the decision to join the larger state lawsuit mostly based on timing.
“NFIB decided to join the states in a lawsuit filed on May 15th,” Harned said. “Currently, there are two leading cases on the Obamacare issue; they are the leading cases due primarily to timing. Virginia decided to file its own case because it has a state statute against the individual mandate; they filed their case before we did. So we decided to join the twenty states.”
Harned says they joined the fight against the mandate in response to member demands from small-business owners.
“Health care has been the number one issue for small business owners since 1986. Small business owners need reforms that decrease costs, and this law just makes matters worse,” Harned said. “Our members have demanded that NFIB take action. Sole proprietors are especially hard-hit by this, but even for small businesses in general there are struggles right now. Our members are upset to have the government tell them how to spend their discretionary money.”
Colorado’s Ballot Initiative
Jon Caldara, president of the Independence Institute, a nonprofit think tank based in Denver, Colorado, has been a key figure in his state’s ballot initiative.
“In the fall we will have a constitutional amendment on the ballot, and we are really thrilled,” said Caldara. “The difference between our amendment and the Missouri Amendment is that ours goes into the Constitution’s bill of rights. It secures the right to health care choice. It says that the state on its own or at the insistence of the federal government cannot force anyone into private insurance and that the state cannot ban direct payment for health insurance.”
Caldara explained why Colorado decided to pursue a constitutional amendment rather than a state statute as Missouri did.
“In Colorado there is no petition difference for a statute rather than a constitutional amendment,” Caldara said. “So for me it was a no-brainer to go for the constitutional amendment. This should be seen as a fundamental constitutional right to health care choice. This could also make Colorado a medical tourism destination in the states because of the cash and pay feature of the amendment.”
Harned says the states and many of her members believe the individual mandate violates the U.S. Constitution.
“The individual mandate is fundamentally unconstitutional,” Harned said. “Even the government now sees they have a problem. Congress said they were passing this law under the Commerce Clause powers, as if the failure to buy health insurance is an economic inactivity that affects commerce.”
Harned said Congress’s promises don’t match up with the Obama administration’s legal arguments.
“They, and the president, were adamant that this is not a tax bill. But legally, they believe they have a stronger argument under their taxing power than under the Commerce Clause and even argued under this taxing power in their brief,” Harned said.
Tenth Amendment Key
Harned notes the Tenth Amendment will be a key element for the courts to consider.
“The states argue they are being commandeered by the federal government to provide health care coverage to an unprecedented number of Americans. This isn’t part of the contract they bargained for when they agreed to pay for part of Medicaid. The federal government is trying to use them as a cash cow,” explains Harned. “The states are not agents of the federal government, but this law treats them like they are.”
Harned expects the federal district court decision on their case to come in the spring of 2011, which will likely be appealed to the Eleventh Circuit Court of Appeals, which will decide the matter in 2012. After that, an appeal to the Supreme Court is almost certain.
“It’s clear to Americans that this mandate is unconstitutional,” Harned said. “It’s important for judges to know people think so.”
Sarah McIntosh, esq. ([email protected]) is a constitutional scholar writing from Lawrence, Kansas.