Posted on 03/10/2010 7:00:39 PM PST by Libloather
Can the States Nullify Health Care Reform?
Timothy S. Jost, J.D.
March 11, 2010
On February 1, the Virginia Senate passed a bill stating that "No resident of this Commonwealth . . . shall be required to obtain or maintain a policy of individual insurance coverage." In considering this legislation, Virginia joins numerous other states with pending legislation aimed at limiting, changing, or opposing national health care reforms (see map).1 What is going on here?
Whereas states generally adopt laws to achieve a legal effect, nullification laws are pure political theater. On its face, the Virginia bill exempts residents of the Commonwealth from having to comply with a law requiring the purchase of health insurance. Although the bill is phrased in the passive voice, its intent is clearly to block the implementation of a federal mandate requiring all individuals to carry health insurance. But achieving this aim is constitutionally impossible.
The Supremacy Clause of the United States Constitution (article VI, clause 2) states, "This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Indeed, one of the primary reasons for adopting our Constitution in place of the Articles of Confederation was to establish the supremacy of national over state law. Our only civil war was fought over the question of whether national or state law was ultimately supreme.
Within the past 60 years, the most important confrontation between federal law and states' rights concerned school desegregation. Faced with federal law commanding the desegregation of its schools, Arkansas amended its constitution to prohibit integration. In Cooper v. Aaron (1958), the only Supreme Court opinion I know of that was signed individually by each of the Court's nine justices, the Court decisively reaffirmed the supremacy of federal law and rejected the state's claimed right to nullification. More recently, a number of federal courts have rejected claims that a state could refuse Medicaid coverage of abortions in cases of rape and incest after the Hyde amendment (which originally prohibited the use of federal funds for coverage of abortion except when the mother's life was at risk) was changed to permit federal funding for abortions under these circumstances.2 These decisions held that state constitutional provisions must yield even to federal regulations. State law cannot nullify federal law. This principle is simply beyond debate, and state legislators, many of them lawyers, know that.
The purpose of these laws, therefore, is not legal but rather political. The Virginia bill is a second-generation nullification statute. Earlier proposals in other states, including a constitutional amendment proposed by the Arizona legislature, are worded differently. These bills protect a right to pay health care providers directly for services and to purchase private health insurance. In other words, they were proposed to oppose a single-payer system or mandatory public option, neither of which has ever been part of the current federal reform legislation. These antireform bills were based on model legislation put forward by the American Legislative Exchange Council, an organization funded by wealthy right-wing foundations to support conservative state legislative causes, which was reportedly aided in this endeavor by the insurance industry.3 Because these bills were not aimed at any actual federal legislation, they seem to have simply been part of a larger campaign to mischaracterize federal legislative efforts and stir up opposition to any federal health care reform.
The Virginia bill, in contrast, is aimed at an actual provision of the federal health care reform bill — the individual mandate. As the legislative findings that accompany the individual mandate in the Senate bill emphasize, the mandate is fundamental to the legislation. The government cannot require insurers to take all comers, regardless of health status and preexisting conditions, unless the healthy as well as the unhealthy are required to purchase health insurance. We will not be able to reduce providers' burden of uncompensated care or the alarming rate of medical bankruptcies unless all Americans who can afford health insurance buy it.
The individual mandate, however, is uniquely vulnerable. First, it is strongly opposed by conservatives and libertarians. The fact that five of the Virginia Senate's Democrats voted for the state senate bill sends a clear message to Virginia's congressional delegation that a federal bill containing such a mandate is going to be very unpopular with many of their constituents.
Second, the individual mandate is somewhat vulnerable constitutionally. Although the argument that the mandate is constitutional is overwhelming, as Balkin noted in a recent issue of the Journal,4 it is hard to think of a direct precedent for it. And the argument against it is not frivolous, unlike most of the other constitutional arguments that have been raised against the pending legislation. The state bills can be read as briefs to the Supreme Court on this issue.
Third, the mandate is particularly vulnerable from an enforcement perspective. It essentially imposes a tax penalty (to begin in 2014 and to be fully phased in by 2016) on uninsured individuals who do not purchase health insurance, subject to a number of exceptions for those who cannot afford health insurance or who oppose it for religious reasons. Individuals are supposed to pay this penalty with their annual income taxes, but the Senate bill waives criminal penalties and prohibits the Internal Revenue Service (IRS) from imposing liens or levies on a taxpayer's property for failure to pay. Compliance will, therefore, be largely voluntary (although the IRS can still make a tax resister's life miserable, whether or not it can ultimately collect). The state bills can thus be seen as invitations to civil disobedience that counsel state citizens to "violate the federal law, wave this statute in their face, and dare them to come after you."
I know of two other significant state campaigns — one ongoing, one historical — to rally or support state citizens in resisting federal law. In the ongoing effort, more than a quarter of the states have now legalized medical marijuana in the face of a federal prohibition. Although the Supreme Court has emphatically upheld the authority of the federal government to outlaw medical marijuana, the Justice Department announced last fall that the prosecution of users of medical marijuana was not "an efficient use of limited federal resources."5 It is possible that the federal government will eventually conclude that it is not possible to enforce the individual mandate for health insurance. But if individuals successfully resist accepting responsibility for being insured, there will be no way of expanding affordable coverage in a system that depends on private insurers. If government funding of health care must therefore be increased, it may not be the result resisters want.
In the historical effort, demagogues such as the late Senator Harry Byrd (D-VA) mounted the Campaign for Massive Resistance to school desegregation in Virginia and other states during the 1950s and 1960s. Virginia passed a series of statutes intended to maintain the strict segregation of its schools, even going so far as to close the public schools in one county for 6 years. The legislation was held unconstitutional by the federal courts, and the campaign eventually collapsed. Today, most Virginians regard the whole episode as an embarrassment. The state legislature has even adopted reparations legislation to help people who were denied an education during the campaign. Perhaps if health care reform is successfully implemented and Americans come to fully appreciate its benefits, they will look back at the current efforts with similar embarrassment.
These resistance efforts are not about law — they are about politics. But of course at this point, health care reform is only about politics, except insofar as it is still about the morality of equal treatment for all.
The American voter can nulify this administration and the entire congress!
Especially when:
1. the states are reflecting the will of their citizens, while Obama’s “socialized medicine / public option” is not
2. with 36 states reviewing the states’ right options, even 10% following through is 3 states taking up federal challenges - keeping the issue in the news and in the court.
3. If only 70% of these 36 states actually challenge, that’s half the Union. Hard to ignore - we had a civil war with fewer states and fewer lawyers.
Of COURSE the Constitution says that it and federal laws are the supreme law of the land! It would be absurd for the Constitution to say otherwise.
But when the federal government abuses its powers, or usurps powers, the states have the right to resist.
If the federal government is wise enough to back down, good.
If the federal government is wicked and stupid enough not to back down, the people have the right to “alter or abolish it,” as some kook right-wing nutcase in the 18th Century put it.
If my tax dollars are spent trying, convicting, imprisoning and then housing this evil Commie in Chief for the rest of his natural born days...it will be money well spent!
The only way the feds can acquire general jurisdiction is by offering the states a voluntary federal program and federal funding to help implement the program. If accepted by the state, they can make the money conditional upon accepting the entire program whole. This is how Medicaid is done.
For example Governor Schwarzenegger recently attempted to cut eligibility for benefits for the federal In Home Support Services for the elderly. The courts ruled he could not make the cuts. He can only completely opt out of the program. It's either in or out, period.
The Constitution does not give the federal government direct jurisdiction to make your personal health care choices. So that is grounds for a Constitutional challenge. They could conceivably gain jurisdiction over insurance companies, medical care providers and pharmacies (in effect the alternatives for care you might chose from) through the Interstate Commerce Act.
The state's can't nullify a program that they have the power to turn away.
[More taxes - higher premiums - not a a way to keep liberal liberals - or convert others]
But the uneducated massas aren’t even aware of that devolve. If you could read the comments on the editorial pages of the newspapers. You can tell much by their grammer too.
They watch American Idol and trust Obozo to help them.
I was also surprised that Nevada has not signed onto this, but It is probably because they are having such a bill budget issue lately. The Nevada politicians are probably walking a tightrope.
“They watch American Idol and trust Obozo to help them.”
I will testify! I work with a whole bunch of them in ‘The People’s Republic of Madistan.’
Seriously - they were going on and on this week about how this thing had better pass and fast so they can all retire and suck off of the government teat (The Taxpayer!) some more! Grrrrrr!
I haven’t been keeping up with other states lately. I just pray they finally get rid of Reid in Nevada.
I actually wrote an e-mail to my state AG and requested that he prepare for a State challenge in case this health care bill passes. The response was that my opinion was dually noted. I take that to mean buzz off little person, but I am happy to see that my state is pushing state level legislation to counter the potential health care bill.
.
Even the educated
The libs refuse to watch FOX/FNC
Swear by MSNBC and CBS, NBC, ABC, Pub-TV channels, news, propaganda
Even most in - NYC - LOL!
So ignorant of the facts and truth - angry if they are rebutted
Maddening, huh? They have no shame, just envy those who worked and have things and think they are somehow entitled to some of it.
10th amendment, 14th amendment. Damn right they can.
From the 1930s New Deal era through the 1970s the federal government significantly grew by increasingly regulating many facets of life.
That did not stop after the 1970s. The expansive Commerce Clause remains in full force. It is Obama's and Pelosi's best friend.
Lol, even Congress was told NOT to go to the Drudge Report, that they would get a virus there. The lying ploys the dems use!
Yes, even the educated are unaware. I do have friends who glaze over when I talk politics.
Can't do much if they don't listen, and you are well aware of that, lol.
When I've posted on the newspaper forum I would get back lies. When I posted the facts to rebut them, they would reiterate the lies. You can't win.
[The expansive Commerce Clause remains in full force. It is Obama’s and Pelosi’s best friend. ]
Right! I read that same exact thing in my search today.
Actually, it occurs to me that closing schools might be a good next step. Why am I paying for the indoctrination of the next generation into values I abhor?
.
THey are much braver and more blatant now
The more outrageous the claim or lies - the more they spew them
“Save a trillion dollars....”
“We need to pass this so we can see what it is all about!”
Neither was a mistake
It is a way of floating the big lie and having a way to back up
Oh, your friends will start paying attention when the gummint checks sto coming.
Now, I thought the Dems/Libs believed in the ‘right to privacy’....hmmmm....seems Roe v. Wade was based on an individuals supposed ‘right’ to privacy...even to the degree that a husband had no right to know if his wife was pregnant.
How do you square this fact with a mandate to purchase health insurance since if you have to buy a policy you will undoubtedly have to disclose personal health information as a consequence? Does the right to privacy (which is dubious at best anyway) only pertain to pregnant women?
It’s all a house of cards.
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