By: David A. Patten

Dozens of states are considering laws to legally ban the individual insurance mandate that lies at the heart of President Obama’s proposed overhaul of the U.S. healthcare system.

Many states have complained that ObamaCare infringes on states’ rights under the U.S. Constitution, because it requires residents to purchase healthcare insurance.

According to the National Conference of State Legislatures (NCSL), at least 36 state legislatures are now using the legislative process “to limit, alter, or oppose selected state or federal actions, including single-payer provisions and mandates that would require purchase of insurance.”

Twenty-six states have proposed amendments to their state constitutions that would ban the individual mandate requirement. Thirteen other states are moving to block the individual mandate by altering state statutes rather than amending their state constitutions, the NCSL reports.

Many legal scholars assume federal law would automatically overrule any state-level legislation. But other scholars say that would not necessarily occur in the case of healthcare reform, because there is no precedent for regulating interstate commerce that isn’t already taking place.

The whole basis of the individual mandate – the federal requirement in ObamaCare that all citizens either carry insurance or be subject to stiff tax penalties that would be administered by the Internal Revenue Service — is that individuals aren’t engaging in a transaction that the federal government seeks to require.

“If you can do that under the premise it has some ethereal impact on the economy, then at that point what would prevent the federal government from requiring any purchase?” asks Robert Alt, senior legal fellow and deputy director of the Heritage Foundation’s Center for Legal and Judicial Studies.

Alt says requiring an insurance purchase goes far beyond the federal government’s current role of regulating interstate commerce. Alt believes the individual mandate authority is such a broad directive that there is a good chance a legal challenge – which would actually come from the individual citizens affected rather than from the states themselves – would succeed.

“I think that case would be extraordinarily strong,” Alt tells Newsmax, “again, because of the reach by Congress with regard to this mandate. We use the term unprecedented lightly in many cases. But in this case, it truly is. You cannot point to a single precedent that would be this bold and far-reaching.”
If Alt is right, it means that even as congressional Republicans battle against Democrats’ over the proposed overhaul of the U.S. healthcare system, yet another engagement is waiting for Democrats at the state level.

Under current healthcare reform proposals, according to Republicans, the IRS would be given authority to conduct audits to verify that citizens obtain adequate health insurance.

Two states, Idaho and the commonwealth of Virginia, have already enacted legislation to thwart ObamaCare. “In general the measures seek to make or keep health insurance optional, and allow people to purchase any type of coverage they may choose,” the NCSL Web site states.

The new Virginia law states: “No resident of this Commonwealth, regardless of whether he has or is eligible for health insurance coverage under any policy or program provided by or through his employer, or a plan sponsored by the Commonwealth or the federal government, shall be required to obtain or maintain a policy of individual insurance coverage. No provision of this title shall render a resident of this Commonwealth liable for any penalty, assessment, fee, or fine as a result of his failure to procure or obtain health insurance coverage.”

Such language obviously sets up a constitutional confrontation with the federal government, should the ObamaCare plan squeak through Congress and be signed into law by the president.

The Idaho law, similarly, protects the individual’s right to choose whether they want insurance coverage. It also directs the state’s attorney general to sue the federal government if it enacts legislation requiring Idaho residents to purchase healthcare insurance.

Two other states, Utah and Arizona, have also passed the legislation.
The measure in Utah is awaiting the governor’s signature. It would prohibit any agency of the state from implementing any part of federal health care reform without the state legislature “specifically authorizing the state’s compliance or participation in, federal health care reform,” according to the NCSL.

The Arizona measure orders that “no law or rule shall compel any person or employer to participate in any health care system.” It has passed both houses of the Arizona legislature, but cannot become law until citizens approve it. It will be on the ballot in the November 2010 elections.

Many states do not allow a constitutional amendment to appear on the ballot until the legislature approves the measure two years consecutively. Those states might have to wait until 2012 to enact a mandate prohibition.

According to the bipartisan NCSL association, as of March the states filing formal resolutions or bills include: Alabama, Alaska, Arkansas, California, Colorado, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Washington, West Virginia, Wisconsin and Wyoming.

Alt says that states mulling anti-mandate legislation are sending a strong message to their Democratic representatives “that their constituents back home may not be on board with this measure.”

One powerful force now pushing states to adopt anti-mandate provisions: the nascent tea party movement.

“We’re 100 percent behind it and promoting it and pushing our state representatives to pass laws to protect our rights,” Everett Wilkinson, a member of the national leadership council of Tea Party Patriots, tells Newsmax.

“All rights not enumerated in the Constitution are reserved to the people and to the states,” he says. “So we are saying healthcare is not defined as a right in the Constitution.

“We can decide on a state-by-state basis whether we want to abide by [a mandate] or not, because it’s a state’s rights issue,” he says. “It’s not a federal rights issue, because it’s not enumerated in the federal Constitution.”

By KIRK JOHNSON

Published: March 16, 2010, NY Times

Gov. Mike Rounds of South Dakota, a Republican, signed a bill into law on Friday declaring that the federal regulation of firearms is invalid if a weapon is made and used in South Dakota.

On Thursday, Wyoming’s governor, Dave Freudenthal, a Democrat, signed a similar bill for that state. The same day, Oklahoma’s House of Representatives approved a resolution that Oklahomans should be able to vote on a state constitutional amendment allowing them to opt out of the federal health care overhaul.

In Utah, lawmakers embraced states’ rights with a vengeance in the final days of the legislative session last week. One measure said Congress and the federal government could not carry out health care reform, not in Utah anyway, without approval of the Legislature. Another bill declared state authority to take federal lands under the eminent domain process. A resolution asserted the “inviolable sovereignty of the State of Utah under the Tenth Amendment to the Constitution.”

Some legal scholars say the new states’ rights drive has more smoke than fire, but for lawmakers, just taking a stand can be important enough.

“Who is the sovereign, the state or the federal government?” said State Representative Chris N. Herrod, a Republican from Provo, Utah, and leader of the 30-member Patrick Henry Caucus, which formed last year and led the assault on federal legal barricades in the session that ended Thursday.

Alabama, Tennessee and Washington are considering bills or constitutional amendments that would assert local police powers to be supreme over the federal authority, according to the Tenth Amendment Center, a research and advocacy group based in Los Angeles. And Utah, again not to be outdone, passed a bill last week that says federal law enforcement authority, even on federal lands, can be limited by the state.

“There’s a tsunami of interest in states’ rights and resistance to an overbearing federal government; that’s what all these measures indicate,” said Gary Marbut, the president of the Montana Shooting Sports Association, which led the drive last year for one of the first “firearms freedoms,” laws like the ones signed last week in South Dakota and Wyoming.

In most cases, conservative anxiety over federal authority is fueling the impulse, with the Tea Party movement or its members in the backdrop or forefront. Mr. Herrod in Utah said that he had spoken at Tea Party rallies, for example, but that his efforts, and those of the Patrick Henry Caucus, were not directly connected to the Tea Partiers.

And in some cases, according to the Tenth Amendment Center, the politics of states’ rights are veering left. Rhode Island, Vermont and Wisconsin, for example — none of them known as conservative bastions — are considering bills that would authorize, or require, governors to recall or take control of National Guard troops, asserting that federal calls to active duty have exceeded federal authority.

“Everything we’ve tried to keep the federal government confined to rational limits has been a failure, an utter, unrelenting failure — so why not try something else?” said Thomas E. Woods Jr., a senior fellow at the Ludwig von Mises Institute, a nonprofit group in Auburn, Ala., that researches what it calls “the scholarship of liberty.”

Mr. Woods, who has a Ph.D. in history, and has written widely on states’ rights and nullification — the argument that says states can sometimes trump or disregard federal law — said he was not sure where the dots between states’ rights and politics connected. But he and others say that whatever it is, something politically powerful is brewing under the statehouse domes.

Other scholars say the state efforts, if pursued in the courts, would face formidable roadblocks. Article 6 of the Constitution says federal authority outranks state authority, and on that bedrock of federalist principle rests centuries of back and forth that states have mostly lost, notably the desegregation of schools in the 1950s and ’60s.

“Article 6 says that that federal law is supreme and that if there’s a conflict, federal law prevails,” said Prof. Ruthann Robson, who teaches constitutional law at the City University of New York School of Law. “It’s pretty difficult to imagine a way in which a state could prevail on many of these.”

And while some efforts do seem headed for a direct conflict with federal laws or the Constitution, others are premised on the idea that federal courts have misinterpreted the Constitution in the federal government’s favor.

A lawsuit filed last year by the Montana Shooting Sports Association after the state’s “firearms freedom” law took effect, for example, does not say that the federal government has no authority to regulate guns, but that courts have misconstrued interstate commerce regulations.

National monuments and medical marijuana, of all things, play a role as well.

Mr. Herrod in Utah said that after an internal memorandum from the United States Department of the Interior was made public last month, discussing sites around the country potentially suitable for federal protection as national monuments — including two sites in Utah — support for all kinds of statements against federal authority gained steam.

And at the Tenth Amendment Center, the group’s founder, Michael Boldin, said he thought states that had bucked federal authority over the last decade by legalizing medical marijuana, even as federal law held all marijuana use and possession to be illegal, had set the template in some ways for the effort now. And those states, Mr. Boldin said, were essentially validated in their efforts last fall when the Justice Department said it would no longer make medical marijuana a priority in the states were it was legal. Nullification, he said, was shown to work.

Whether the political impulse of states’ rights and nullification will become a direct political fault line in the national elections this fall is uncertain, said Mr. Woods of the von Mises institute.

But in Utah, at least, a key indicator is coming much sooner. The party caucuses to determine, among other things, whether candidates will face primary elections, are to be held next Tuesday, and Mr. Herrod said the states rights’ crowd would attend and push for change.

“Those politicians who don’t understand that things are different are in big trouble because a few people showing up to caucus can have a big influence,” Mr. Herrod said.

A spokeswoman for Gov. Gary R. Herbert, a Republican — who signed a firearms law like South Dakota’s last month declaring exemption from federal regulation for guns made and used within the state — said Mr. Herbert was still studying the new batch of bills passed this week and had not yet made decisions about signing them.

Malcolm Salls (2nd from right) won the 2010 Ski Package Raffle,  sponsored by TenthAmendmentNH, Granite Town Tavern, Sport Loft of Amherst, K2, Budweiser and Waterville Valley Resort.  Proceeds from the raffle support legislative review and liaison with New Hampshire lawmakers considering proposed nullification measures. Also pictured are Granite Town Tavern owners Kurt Thomas (far left)  Mark Fairbanks (far right) and TenthAmendmentNH Executive Director Robert Silva.

Salls, an accomplished musician, purchased the winning ticket an hour before the 11:00 pm drawing January 29th at a packed Granite Town Tavern.  Many raffle ticket holders sampled the Tavern’s various libations and pub menu items while enjoying the evening entertainment of rock and blues guitarist Gary Lopez.

Although Malcolm and his wife are looking forward to their weekend at Waterville Valley Ski Resort and their stay at he Golden Eagle Lodge (two-day lift tickets are included),  Malcolm admitted that he has never skied before! “I never won anything before now, either” said Salls after hearing his winning number announced.

Congratulations,  Malcolm!

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