Constitutional Law

Can States Say "No Thanks" to ObamaCare's Health Insurance Mandate?

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Nancy Pelosi may be convinced that we have to pass health care reform in order to find out what's in it, but if it passes, there's at least one provision we can already count on: an individual mandate to buy health insurance. Polling shows that this requirement is one of the bill's least popular features, so it's not exactly surprising to find that states are taking action to allow individuals to bypass such requirements. More than 30 states are considering such laws, and a ban on mandatory insurance has already passed in the Virginia Senate.

Eerily similar, wouldn't you say?

Will these individual protections work? An article in TPM yesterday says that Virginia's law is "almost certainly unconstitutional" because "the Constitution's federal supremacy clause makes clear that when federal and state law conflict, federal law takes precedence."

I asked a couple of legal and constitutional scholars what they thought, and the consensus seems to be that though state laws barring mandatory insurance shouldn't be unconstitutional, it's likely that if health reform were passed and they were challenged, the Supreme Court would rule that they are. However, we don't actually know for sure, and there is legal precedent for the Supreme Court to side with a state in a federal/state dispute.

All of them also noted that, regardless of whether or not these laws and amendments eventually stand up to challenge, they're strong political signals of opposition against the insurance mandate—which is arguably the centerpiece of the Democrats' federal health care overhaul (the other key regulations don't work without a mandate). 

On the constitutional question, Roger Pilon of the Cato Institute says, "It isn't simply the Supremacy Clause that would make the state law unconstitutional, but rather the constitutionality of the federal statute together with the Supremacy Clause and the inconsistent state law." In other words, the Supremacy Clause alone wouldn't render Virginia's law unconstitutional. Instead, it would be struck down only if and when a federal individual mandate was passed and ruled constitutional.

Like many of those I got in touch with, Pilon thinks the better bet is that, should a mandate be enacted, it would be ruled constitutional—though he also thinks it probably shouldn't be. (For more on that, see here and here.)

Underneath their robes

There is, however, some question over whether such a ruling would actually invalidate state law. As this Wall Street Journal piece notes, "If Congress passes some version of health legislation, the federal law may preempt these state laws. But states do have the right to provide extra protections beyond what federal law guarantees. Many states, for example, have freedom of speech protections that go beyond federal law."

In Arizona, which will vote on a constitutional amendment that preserves the freedom of individuals to decline to participate in any health care system this November, the Goldwater Institute's Clint Bolick has prepared a Q & A on the issue. In it, he notes several legal precedents which suggest that states might be able to preserve individual protections. In particular, he singles out a case involving a "right-to-die" law in Oregon:

In the case most closely on point, Gonzales v. Oregon (2006), the Court upheld the state's "right-to-die" law, which was enacted by Oregon voters, over the objections of the U.S. Attorney General, who argued that federal law pre-empted the state law. Applying "the structure and limitations of federalism," the Court observed that states have great latitude in regulating health and safety, including medical standards, which are primarily and historically a matter of local concern. Holding that the attorney general's reading of the federal statute would mark "a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality," the Court interpreted the statute to allow Oregon to protect the rights of its citizens.

In other words, though perhaps unlikely, it's not impossible that state laws preserving an individual right to opt out could survive legal challenge. And no matter what, the existence of these laws send a fairly powerful political signal—one that will almost certainly factor into the decisions now being made by undecided House members.

NEXT: USA Today Notes 'Growing Popular Acceptance' of Pot

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  1. “I asked a couple of legal and constitutional scholars what they thought, and the consensus seems to be that though state laws barring mandatory insurance shouldn’t be unconstitutional…”

    I can’t imagine why this would be an important question…

    If the provision is wildly unpopular (and it is), then Congress will get rid of it.

    …sort of why I’m not so concerned about financial regulation–regulation tends to rise at the bottom of the economic cycle and then when things get better, Congress regains its sanity (or succumbs to pressure, however you want to look at it).

    Anyway, the point is that if the provision is unpopular–and it is–then it doesn’t have any legs and it won’t stand. …and the only people who should spend any time thinking about it are would be pundits and the poor souls who for unknown reasons pay attention to them.

    1. Dear Cosmotarian Overlord,

      It’s OK if you want to do your little Cosmo-spoof sock puppet some times. I even kind of like it. But using other peoples handles isn’t cool.

  2. Worf is Ginsberg?!? Wait, that kind of makes sense in a weird way. They would both say that prune juice “is a warrior’s drink”.

    And who was unlucky enough to be Twinky Wesley?

    1. Ginsberg has also killed people on the field of honor.

      1. Worf is a putz. There, I said it. He’s a race-obsessed collectivist who somehow seems to know everything about Klingon heritage even though he was raised by humans. And his son…holy shit, what an annoying little bastard. Come here, Alexander, I want to show you this airlock. You can play in there! Go ahead!

        1. I thought Worf was raised by wolves. No?

          1. Close. He was raised by Ukrainians.

        2. I can’t believe you would pick on Worf when both Crushers are in that picture.

          1. I prefer the early Councelor Troi in her cheerleader outfit.

            1. Troi? Don’t even talk about her. I’ll never get over the fact that she outranked Data by the time the series was over. Talk about affirmative action.

              1. Well, she was a counselor. It gets lonely in outer space.

              2. uhm, hello, how long was Ensign Kim an ensign?

                1. That’s his own damn underachieving fault. He didn’t have his parents around to push him out there in the Delta Quadrant.

                  1. Tuvok got busted to lieutenant and somehow got his rank back later. Captain Hepburn was all over the place. I blame change of life.

                2. Or Captain Picard — after personally saving the Federation/human race/universe dozens of times — was still getting pushed around by pencilneck admirals in the seventh season, being told that if he disobeyed the slightest part of their orders his career would be over.

                  1. Considering that Star Fleet is a government agency, that was probably one of the more realistic parts of the show.

                    1. …at least that’s how things work here in the FAA.

            2. The most heinous crime of TNG was that they had literally the least attractive female cast of any show outside of Cagney and Lacey. Why, Gene? WHY? What changed from TOS to TNG? I know…Brannon “meta-retard” Braga and Rick “douchebag” Berman.

              1. Excuse me? Do Roseanne, Golden Girls, and Designing Women ring a bell?

                1. I had blocked those from my memory. Thanks a bunch, you bastard.

                  1. Actually, a large part of the problem was what didn’t change from TOS to TNG: Diana Muldaur and Marge Roddenberry.

            3. @,I am sensing deception…that you do want to see someone in a cheerleader outfit…Two people?….What? Not me….Tulpa and Epi.

              1. Sorry, you got fat and ugly over the past 15 years. Of course, so did I, but I was never a nerd sex symbol as far as I know.

          2. I like to change things up.

          3. Hey, now… Gates McFadden was hot.

            Well, to look at… not the acting.

            Hey, I digs me some redheads.

        3. well at least he was totally into kinky interspecies sex. which is more than i can say about most collectivists.

          1. I will admit that his step up to alien parasite Terry Farrell in DS9 (which I hate and almost never watched) was at least a positive thing.

            1. Alien parasite Perry Farrell would’ve ben cool, though.

              1. You mean he isn’t already?

                And I’d frankly much rather look at Terry Farrell.

                1. Terry Farrell’s much easier to look at. But let’s face it, Perry needs to do some sci-fi. He’s not as cool as George Clinton, David Bowie, Prince or Bryan Ferry, but he’s on that next level.

                  1. Maybe he can be Morbo’s pet on future Futurama episodes. After all, Perry’s the one who said we’ll make great pets.

            2. Some of DS9 (well quite a bit of it) did suck, but the Dominion wars stuff was pretty good (apart from the “prophets” stuff).

              1. Well, Rodenberry *was* always kinda suspicious of capitalism.

            3. I thought there were some pretty good DS9 shows. The trick to knowing which is to use what I call the Hawk Meter. At the beginning of the show, evaluate how much Brooks is going to the Hawk well in his portrayal of Sisko. More Hawk is, of course, better.

        4. I liked Worf, but the way they wrote him was insane. He was raised on Earth, well after there was peace between the Federation and the Klingon Empire, by very loving parents, in a society that is so tolerant and accepting of change as to be rather sickening at times. No way, no how he was exposed to enough prejudice to make him retreat into his Klingon roots.

          They sometimes did episodes where he clearly favored the Federation–not just out of duty, either. Which made the later Worf–Captain Klingon Honor–not a little ridiculous.

          I think the Evil Bs didn’t realize how popular the Klingon arcs would be and were scared to make him too human.

          1. In the first season episode Heart of Glory, it’s explained that Klingon ways are innate — that as a child on the (human) farming planet Galt, Worf felt the urge to go out into the night and hunt, and this gave others in his community the creeps. And this was before Berman & Braga were in charge.

            1. Sure, that’s fine. He’s got some Klingon impulses. Naturally. But that doesn’t explain how they go out of their way to say that he’s homesick for Earth, etc., then make him super-Klingon later. Besides, where’s all that Klingon commitment to family and loyalty in regards to the people who raised him? I could drive a Borg cube through the plot holes around Worf.

              1. yes, but a borg *sphere* would have been scarier (speaking of plot holes)

  3. Suderman, you fail so bad. You can’t even scrounge up a photo with the current line-up of the Supreme Court???

    1. Gasp! What a travesty.

  4. So which one of the Supreme Court justices is Tasha Yar? I am curious to know which one of them will die at the end of this season at the hands of a hulking mass of photocopier ink.

    1. There were two Season 1 episodes after Tasha died. Conspiracy and The Neutral Zone.

    2. That’s an EVIL hulking mass of photocopier ink, buddy.

    3. That’s an ASMATIC, evil, hulking mass of photocopier ink.

  5. If the states want to they can just declare that every individual is their own insurance company. Congress could try and override this, but they don’t have the votes to pass anything but perhaps the current Senate bill.

    Since revenue bills must originate in the house, the mandate taxation portion of that bill would be unconstitutional as enacted in any case.

    1. Sorry to break in here, but I guess this is what I was trying to say up top…

      Who cares about whether anything’s constitutional anymore? That’s so 2003!

      The damn gun laws in DC, Los Angeles and New York have been unconstitutional for 40 years!

      What difference does constitutional make?

      Are the people who might be forced to buy health insurance they don’t need and can’t afford supposed to console themselves with the realization that 40 years from now some future Supreme Court might decide that oppressing them in this way is unconstitutional?

      Are there more than two congressmen who will vote against something their constituents want just because it’s unconstitutional?

      I can see why this would matter to people on a libertarian board, but outside of our little universe–nevermind warrantless wiretaps, torture, denying an American citizen the right to a trial, the Patriot Act, etc. …do you really think anyone in Congress cares about whether making people buy health insurance is constitutional?

      1. Judging by the continued nerd fest below, you can pencil a solid “don’t care” as a response to all your questions.

        1. Oh, be quiet. What, we should be political all the time? It’s that kind of thinking that’s produced this silly, silly government.

  6. Picard = Stevens
    Riker = Roberts
    Data = Breyer
    Troi = Sotomayor
    Beverly = Ginsberg
    Worf = Thomas
    La Forge = Scalia
    Yar = Kennedy
    Wesley = Alito

    1. Worf = Thomas

      Racist.

      1. Actually I was referring to Worf’s sulking, silent demeanor, which reminds me of Thomas during oral arguments.

        And while Worf and his brother were played by black actors, not all the Klingons were — his mate and son were played by whites.

        1. Picard = Thomas (Brooding, hairline, really runs the place)
          Riker = Kennedy (Swing vote = #1, gets all the tail)
          Data = Breyer (Robotic, nerdy and programmed in multiple techniques)
          Troi = Stevens (THE empath on the Court)
          Beverly = Ginsberg (Jews do make the best doctors)
          Worf = Scalia (Will kill on command)
          La Forge = Roberts (Will tell you all about the anti-matter stream if given a chance)
          Yar = Sotomayor (Youngest and did Breyer in the cloak room)
          Wesley = Alito (‘Nuf said)

          1. This is uncannily accurate, JW. Have you been writing Supreme Court/TNG mashup slash fic in you spare time? Why am I asking? Of course you have.

            Pervert.

            1. Wait for my next installment. You and Alito will get caught in a Jeffries tube running level 1 diagnostics on each other.

              1. Level 1, huh? WTF does level 1 even mean? Can you answer that, Picard? Huh?

                1. Picard!? Those are fighting words, Wesley.

              2. JW,when do you get fucked in the ear?

                1. Perform oo-mox on me, humon females!

        2. And while Worf and his brother were played by black actors, not all the Klingons were — his mate and son were played by whites.

          Very true. I was just reminded of people who responded to the LotR movies by saying, “The orcs are obviously stand-ins for black people, which is racist since you’re portraying black people as evil savages!” To which the response was, “Wait, you’re the ones who see orcs and automatically think black people.”

          1. not to mention the albino one.

            and even in tos, the klingons were played by asians!

    2. Worf = Thomas

      now that’s just racist.

      La Forge = Scalia

      also racist.

      1. dammit john thacker.

  7. How the hell do you follow these comments (for want of a better word)

    1. You grab the horns. Then you hold on like hell.

      1. How do you what?

      2. Personally I prefer to close with a clockwise swirl, but you might want to change that up.

        1. You stole my move, you bastard!

    2. At Reason’s Hit & Run, you don’t follow the comments, the comments follow you.

      1. All your comment are belong to us.

  8. If a Federal mandate is ever judged constitutional it will be time for the Second Revolution.

  9. If a Federal mandate is ever passed, the ranks of the Amish will grow astronomically.

  10. So, if I REFUSE all down the line to get health insurance, I will eventually be tossed into jail where large men with pus-sores on their dicks will butt-fuck me until I scab over and get AIDS? Pretty fair trade.

    1. Knock it off, Jamie. This is a Star Trek thread.

      1. Health insurance and Star Trek can be discussed simultaneously. As demonstrated by Vice President Takei:

        How is this relevant to our healthcare plan? Well, let me quote the president: “George, when I watch Star Trek, and Sulu or some other character gets injured, do they have to pay Dr. McCoy for medical treatment? Hell, no!” And you know what? He’s right. I never did pay Dr. McCoy! It was free! And no one can deny that the crew of the Enterprise got the best care in the entire galaxy, can they? [applause]

    2. Health care courtesy of the Department of Corrections.

  11. OK, enough with the complaining about the wrong-door SWAT raids — how about wrong-door foreclosures?

  12. And in a slight – yet related – threadjack, why does everyone keep calling this guy in the news “Massa”??

    Sounds racist to me.

  13. He’s altering the deal. Pray he doesn’t alter it any further.

    President Barack Obama said Tuesday he’ll bring in high-tech bounty hunters to help root out health care fraud, grabbing a populist idea with bipartisan backing in his final push to overhaul the system.

    The bounty hunters in this case would be private auditors armed with sophisticated computer programs to scan Medicare and Medicaid billing data for patterns of bogus claims. The auditors would get to keep part of any funds they recover for the government. The White House said a pilot program run by Medicare in California, New York and Texas recouped $900 million for taxpayers from 2005-2008.

    1. The auditors would get to keep part of any funds they recover for the government.

      What could possibly go wrong?

      “But, it was only a dental checkup!”
      “Right. You said the same thing last year. Denied!”

    2. Why wouldn’t you want an end to fraud?

    3. The auditors would get to keep part of any funds they recover for the government.

      This is just such a spectacularly bad idea that I have to assume he’s joking. Right? Oh wait, I forgot that Obama hasn’t yet done a single thing right, honestly, or well. Sigh.

      1. They could save a lot of time if they hired the same companies that speed and red light cameras.

    4. Bounty hunters? We don’t need their scum.

    5. It’ll work out just as well as asset seizures and the TSA.

      1. It’s as clumsy as it is stupid (gotta get the reference in somewhere!)

    6. Umm, they are already doing this. There are at least three programs up and running right now where private audit firms are going through Medicare bills, and collecting a contingency fee for every bill they throw out.

      Oddly, they aren’t required to identify underpayments, or required to fund a portion of the underpayments that are identified.

      Asymmetrical incentives will lead to distorted results.

  14. 1. The State of New Jersey hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government. This resolution serves as notice and demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.

    I recently came across this piece of proposed legislation from my State Senator (who is a Dentist by trade, and a Democrat). It seems pretty vague, since there are no specific mandates enumerated in the text of the legislation, just this: A number of proposals from previous administrations and some now pending from the present administration and from Congress may further violate the Constitution of the United States;.

  15. I hate to spoil the nerd fest, but doesn’t it seem a little odd that so many of us Libertarians (mea culpa) are fans of Star Trek when it is a show about a multi-world government run space program? Just sayin…

    1. Not a fan. But did enjoy the hologram deck episode wherein Troi gets raped by hoodlums in an apocalyptic Earth scenario, only to be avenged by a Charles Bronson mirage. That’s what she gets for all that bad advice.

    2. Wait, we weren’t supposed to be rooting for the Ferengi?

    3. As Picard says, “The economics of the future are slightly different.” Once you have the nearly inexhaustible sources of energy that the Federation does, a lot of our economic philosophy is rendered moot.

      1. Correct. Just like atomic energy became too cheap to meter.

  16. Retreat? In our moment of triumph? I think you overestimate their chances.

    Oh, excuse me, am I in the wrong thread?

  17. “the Supremacy Clause alone wouldn’t render Virginia’s law unconstitutional. Instead, it would be struck down only if and when a federal individual mandate was passed and ruled constitutional.”

    Exactly. And a federal mandate directing all individuals to purchase ANYTHING is patently unconstitutional. I don’t give half a flying fuck if Pelosi doesn’t believe that yes, indeed, you heinous bitch, we are serious as a fucking heart attack, but show me in the Constitution where the federal government is empowered to direct the American people to buy anything.

    Fuck them with a splintered mop handle.

    I will back my state (Virginia) all the way on this issue – at some point, the states have got to start standing back up to Congress and telling the federal overlords enough is enough and they’ve gone too far.

    At a certain point, how will they enforce their little mandate, if the states refuse to go along with the scheme?

  18. I hate to spoil the nerd fest, but doesn’t it seem a little odd that so many of us Libertarians (mea culpa) are fans of Star Trek when it is a show about a multi-world government run space program? Just sayin…

    The whole gov’t-in-startrek thing didn’t occur to me until i was into my 20’s, and by then it was already entrenched as a part of my world.

    It killed some of the magic, for sure, but it also gave me a better appreciation for the depictions of local gov’t and economic activity in DS9.

    Can you believe there’s still illegal drugs in 2375?

    1. It was vaguer what kind of government they had on TOS, of course. And credits were used, so some sort of market still existed. It wasn’t until TNG that the crap got overt.

  19. My question is, isn’t it unconstitutional for the federal government to cram health care down our throats, isn’t it unconstitutional to be forced to pay for something we do not want.

    1. susan… article.. above.. others on internets.

      most seem to say that it is constitutional based on commerce clause and precedent – though others say it really has no precedent considering you are forcing the purchase of a product – no one will likely know until SCOTUS decides.. and then we still won’t know – because there’s no right/wrong.. just decisions.

    2. but.. susan – let me add that by your phrasing ‘unconstitutional to pay for something we don’t want’…. um.. hell no – we pay for a ton of things we don’t want. Taxes. — schools/military/roads – what have you. The only difference is.. in this case you are to buy a product from a private business.

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  24. The State laws ruling health care not enforceable is not a tussle between the State and Fed(supremacy), States have the Nullification ability to void laws as they see fit also, New Hampshire comes to mind – the fed has no power there for the State has rights under the 9th and 10th Amendments.

    Arguing that you must buy health insurance is the same as arguing that you must also buy Gasoline to make the price cheaper for all. What if you run an electric car??, so what if you are making healthy lifestyle choices and not eating the garbage chemicals in all the food, and not getting Fat or getting diabetic, or other problems.

    No you can not make someone buy gas or Health-care to do so is not just ridiculous – it won’t be tolerated by Men and woman who have already spoken and said absolutely not.

    The people are the sovereigns – not the government – they the Government only get their just powers to Govern by the CONSENT of the Governed – this reader seems to hear the argument that ,many DO NOT CONSENT to this mandatory health purchase.

    Its like a registration they don’t agree with

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