State legislatures revolt against ObamaCare mandates


Although President Barack Obama’s push for a health care overhaul has stalled, conservative lawmakers in more than two-thirds of the states are forging ahead with constitutional amendments to ban government health insurance mandates.

The proposals would assert a state-based right for people to pay medical bills from their own pocketbooks and prohibit penalties against those who refuse to carry health insurance.

In many states, the proposals began as a backlash to Democratic health care plans pending in Congress. But instead of backing away after a Massachusetts election gave Senate Republicans the filibuster power to halt the health care legislation, many state lawmakers are ramping up their efforts with new enthusiasm.

The moves reflect the continued political potency of the issue for conservatives, who have used it extensively for fundraising and attracting new supporters. The legal impact of any state measures may be questionable because courts generally have held that federal laws trump those in states.

Lawmakers in 35 states have filed or proposed amendments to their state constitutions or statutes rejecting health insurance mandates, according to the American Legislative Exchange Council, a nonprofit group that promotes limited government that is helping coordinate the efforts. Many of those proposals are targeted for the November ballot, assuring that health care remains a hot topic as hundreds of federal and state lawmakers face re-election.

Legislative committees in Idaho and Virginia endorsed their measures this past week. Supporters held a rally at the Pennsylvania Capitol. And hearings on the proposed constitutional amendments were held in Georgia and Missouri. The Missouri hearing drew overflow crowds the day after Obama urged federal lawmakers during his State of the Union address to keep pressing to pass a health care bill. The Nebraska Legislature plans a hearing on a measure this coming week.

Supporters of the state measures portray them as a way of defending individual rights and state sovereignty, asserting that the federal government has no authority to tell states and their citizens to buy health insurance.

There’s an argument to be made that requiring private citizens to buy a product as a matter of law violates both the Ninth and Tenth Amendments of the Bill of Rights. The Ninth protects “unenumerated rights,” that is, those not specifically mentioned in the Constitution but still derived from natural law, while the Tenth specifies that powers not explicitly granted to the Federal government under the Constitution are retained by the states and the people. The argument over how to interpret these amendments and the proper balance of the roles of the federal and state governments is one of the oldest in American political history, going back to the Constitutional Convention itself.

I’m not an expert, but my guess is that an argument under the Ninth would be that the freedom to decide which products to purchase, if any, falls under the right of the individual to be sovereign over his property, including his money and his own person. Under the Tenth, it could be argued that, since the commerce in health insurance does not cross state borders*, Congress has no power under the Constitution to regulate it, and that state laws barring an individual mandate are therefore valid. Also, since no power to command the purchases of the people was granted, Congress has no authority.

*(I wonder if the Right is opening a can of worms by calling for interstate commerce in health insurance, since then Congress could regulate it under the Commerce Clause…)

I think an argument under the Tenth is probably correct; I have no idea about the Ninth, which, as I understand it, is rarely invoked in US law. Regardless, since I vehemently oppose socialized medicine and, in particular, ObamaCare, I hope these acts by state legislatures withstand constitutional scrutiny.

On the other hand, they do remind me uncomfortably of the Nullification Crisis

RELATED: A very good book on the Bill of Rights, with a chapter on the Ninth amendment.

UPDATE: I should point out that the Virginia Senate, which is dominated by Democrats, is one of the bodies voting to tell the Fed to stuff it.

3 Responses to State legislatures revolt against ObamaCare mandates

  1. archer52 says:

    The states better be careful. I ran across this at the Drudgereport. As a former law enforcement officer, it made me a little queasy.

    A nice note from the IRS. They are buying combat shotguns.

    Posted February 4th, 2010 by admin

    Nothing good here. The IRS is purchasing what amounts to (in the eyes of the liberals) assault shotguns. Read the details of the purchase request. As a former police detective I can tell you these shotguns are built for taking down a target, not just for defense. Here are the specifications-

    “The Internal Revenue Service (IRS) intends to purchase sixty Remington Model 870 Police RAMAC #24587 12 gauge pump-action shotguns for the Criminal Investigation Division. The Remington parkerized shotguns, with fourteen inch barrel, modified choke, Wilson Combat Ghost Ring rear sight and XS4 Contour Bead front sight, Knoxx Reduced Recoil Adjustable Stock, and Speedfeed ribbed black forend, are designated as the only shotguns authorized for IRS duty based on compatibility with IRS existing shotgun inventory, certified armorer and combat training and protocol, maintenance, and parts.”

    Exactly who are they going to assault that owes back taxes? Usually, they file suits, have court hearings, garnish wages, etc. Now they are arming themselves with fourteen inch (hey what happened to that eighteen inch rule for legal…. oh never mind) barrel, modified choke with Wilson Combat Ghost rings. Here is a link to a photo of the weapon without the ghost rings.

    I don’t have a problem with a law enforcement agency protecting their officers. However, I do remember the last time a democratic administration got in power back in the nineties and how that worked out for a bunch of young children and a mother holding a baby. The problem with getting all amped up over things when you are a police officer or a federal agent is you tend to forget the first rule governing your behavior should be “first do no harm.” The IRS isn’t charged with killing tax evaders. Jail them? Maybe if the offense is bad enough, but assault them with shotguns? Not a good idea. Somewhere someone is gearing up for something. And nothing good is going to come out of it.

    I was hoping they learned the lessons from the last time around. Maybe I’m wrong. What happens when a government gets out of control? Read my upcoming book-

  2. […] majority in place, it’s occurred to some that, if ObamaCare passes, the Court could undo major portions of it. For Progressives, who know better than anyone else in the nation (in their own minds) how […]

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