In anticipation of the federal individual mandate to require citizens to purchase health insurance approved by the Congress, the Commonwealth of Virginia recently passed a bill providing the basis for a state-based legal challenge.
The pushback came from a bipartisan coalition of elected officials in advance of Congress’s approval of President Obama’s health care legislation. The Democrat-controlled Virginia Senate passed their version of the anti-mandate measure, Senate Bill 417, in February, followed by the House of Delegates passing House Bill 10, 87-17 in March.
Gov. Bob McDonnell, a Republican, says he plans to sign the bill, and Republican Attorney General Ken Cuccinelli has declared his intention to file suit “against the federal government and its unconstitutional overreach of its authority.”
Other States Consider Action
Statehouses across the country have been considering similar legislation. According to Christie Herrera, director of the Health and Human Services Task Force for the American Legislative Exchange Council (ALEC), a DC-based nonprofit, a total of 38 states are considering anti-mandate measures.
“Thirty-three states have introduced legislation,” Herrera said. “An additional four have announced their intentions to file, and there is one citizen-led initiative announced by the Independent Institute.”
“The origin of this legislation isn’t Obamacare-related at all. The original goal, when the legislation was conceived in 2006, was to stop a Massachusetts-style individual mandate in Arizona,” said Herrera.
In December 2008, ALEC endorsed the Arizona language and seeded the idea to other states. The primary goal of these state constitutional amendments is to preclude any state individual mandate, or any state prohibition against direct payment for medical care.
“This can be done without a grandiose court battle. The plus is that these bills, either as a constitutional amendment or in statutory form, can also provide a federalist shield if Congress moves on either of those provisions,” Herrera said.
Clint Bolick, director of the Center for Constitutional Litigation at the Arizona-based Goldwater Institute, explained why states are considering such legislation.
“With pro-big government types controlling Washington, freedom advocates realize that states can provide an important line of defense for their liberties,” Bolick said. “In the face of policies threatening the medical autonomy of millions of people, the Health Care Freedom Act is a way to create a constitutional firewall.”
Health Freedom Goes National
States are following Arizona’s lead via constitutional amendments and statutory approaches.
“Most states are doing a constitutional amendment. But some states don’t consider constitutional amendments this session, like Virginia, or have byzantine rules for amending their constitution, like Tennessee,” Herrera said. “A handful of states are pushing forward to enact statutory measures for now.”
Idaho’s statutory measure currently sits on the governor’s desk, and Kansas’s bill has passed out of committee and will head to the House floor. The Senate version of the Kansas bill is still being considered by the judiciary committee.
“The Health Care Freedom Act will be back on the November 2010 ballot in Arizona. It differs from the original initiative only in that it responds to critics who feared the 2008 initiative would have adversely affected existing state programs,” said Bolick.
Opt-Outs Could Scuttle Plan?
The legislation was not without opposition in Virginia. Herrera says opponents likened it to efforts to evade federally ordered racial integration of schools in the 1950s. Others say if states try to opt out of the federal mandate the entire plan could fail because without the healthy to subsidize the sick, prices would skyrocket.
“The people of Virginia have made a statement to the federal government through their state that government cannot control their health care decisions,” said Kansas Sen. Mary Pilcher-Cook (R-Johnson County). “Hopefully the people of Kansas, like citizens in many other states, will soon join Virginia in making that statement.”
Disagreement Over Legal Outcomes
Proponents of the health care overhaul say the federal law mandating the purchase of insurance is constitutional under the “general welfare” clause of the United States Constitution, or that the mandate is merely a taxation power because people would be penalized if they don’t obtain health insurance.
But according to Dave Roland, a policy analyst for the Show-Me Institute, a Missouri-based think tank, the state laws will be enforceable even though federal health care legislation does not offer an opt-out provision
“The Bill of Rights of the United States Constitution does not demarcate the outer limits of individual freedoms to which citizens are entitled,” said Roland. “Rather, it merely establishes a baseline of liberty that cannot be violated by any level of government. The states each have their own constitutions, and those documents can—and frequently do—provide an even higher level of protection for liberty than is afforded by the U.S. Constitution.”
Supreme Court Could Decide
“If Congress tried to enforce a law that directly violated the terms of the Health Care Freedom Amendment, the courts would have to decide whether a state’s guarantee of liberty to its citizens can protect them from actions by the federal government that would violate that liberty,” said Roland.
According to Herrera, the Virginia act enables an individual citizen to rely on the legal power of the Commonwealth to defend him- or herself in a case that could conceivably go to the Supreme Court, which could decide the constitutionality of the mandate.
“Based on the current composition of the Supreme Court, I expect the individual health insurance mandate would probably be found unconstitutional, either as a violation of the commerce clause or the individual right to privacy,” said Roland.
Sarah McIntosh ([email protected]) teaches constitutional law and American politics at Wichita State University in Kansas.
Virginia Senate Bill 417: http://leg1.state.va.us/cgi-bin/legp504.exe?ses=101&typ=bil&val=sb417&Submit2=Go
Virginia House Bill 10: http://leg1.state.va.us/cgi-bin/legp504.exe?ses=101&typ=bil&val=hb10&Submit2=Go