State legislatures revolt against ObamaCare mandates

February 2, 2010

Interesting:

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.