Idaho challenges national health care proposal; more states may follow
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03/18/2010 03:21 AM
03/18/2010 03:21 AM
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Idaho challenges national health care proposal; more states may follow
From Dugald McConnell, CNN
Washington (CNN) -- Idaho on Wednesday became the first state to pass a law saying no thanks to part of President Obama's health care proposal.
The Idaho Health Care Freedom Act says in part, "every person within the state of Idaho is and shall be free to choose or decline to choose any mode of securing health care services without penalty or threat of penalty."
Gov. C.L. "Butch" Otter, a Republican, said Wednesday he signed it because he believes any health care laws should ensure people are "treated as an individual, rather than as an amorphous mass whose only purpose in this world is to obey federal mandates."
Several other states may follow suit.
The governor of Virginia is expected to sign a bill passed in his state last week, and according to American Legislative Exchange Council, similar proposals have made it through one chamber of the legislatures in Missouri, Oklahoma and Tennessee. While such bills have recently failed in six states, 22 additional states have seen proposals introduced.
These state laws would directly conflict with the national health care bill that Democrats are trying to pass, which includes a requirement that all individuals get health coverage or face a tax penalty.
Several legal analysts said if Congress enacts a national health care law, it would supersede any state laws written to block them.
"I think most of the states that are passing these laws understand that they can't trump federal law with state law," said Professor Jonathan Siegel at George Washington University Law School. "But what they get out of it is symbolic effect. They're sending a message to the federal politicians that they don't like the health care mandate."
Such state laws might not be the only legal challenge to Democratic health care legislation.
Florida Attorney General Bill McCollum, a Republican, on Tuesday sent a letter to the other 49 state attorneys general, asking them to join him "in preparing a legal challenge to the constitutionality of whatever individual mandate provision emerges, immediately upon the legislation becoming law."
States have previously challenged federal laws and regulations in areas aside from health care.
Five states have passed a Firearms Freedom Act, according to firearmsfreedomact.com, including Montana, Wyoming, South Dakota, Tennessee and Utah. The law declares that any guns that are manufactured and kept in-state are not subject to federal gun laws passed by Congress under interstate commerce authority, because the guns never crossed state lines.
A number of states have also passed laws trying to wrest more control from Washington over issues such as how public lands are used or how a state's National Guard forces are deployed overseas, according to the 10th Amendment Center, which advocates for states' rights.
While such laws may face an uphill path in court, supporters describe them as a sign of public opinion, which can still have impact.
They point to last year's announcement of federal policy on medicinal marijuana, after 14 states passed laws to allow its use. While federal drug law makes no exception to allow medicinal use of marijuana, Attorney General Eric Holder said in October that prosecuting the use of medicinal marijuana users wouldn't be a priority.
He said the Justice Department would instead "effectively focus our resources on serious drug traffickers, while taking into account state and local laws."
CNN's Brian Todd and Eric Weisbrod contributed to this report.
"The time for war has not yet come, but it will come and that soon, and when it does come, my advice is to draw the sword and throw away the scabbard." Gen. T.J. Jackson, March 1861
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Re: Idaho challenges national health care proposal; more states may follow
#150966
03/18/2010 11:46 AM
03/18/2010 11:46 AM
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Would "deem and pass" survive a judicial review? Jonathon Adler at the Volokh Conspiracy says even if it is unconstitutional, there's no guarantee the federal courts will rule that way. Politico reports that quite a few constitutional experts, in addition to Stanford’s Michael McConnell and Yale’s Jack Balkin, believe the so-called “Slaughter Solution” (aka “Deem and Pass”) could present a thorny constitutional question. McConnell thinks it’s clearly unconstitutional; Balkin believes its constitutionality depends on its final form. To McConnell and Balkin, Politico adds GW’s Alan Morrison and Public Citizen’s Alison Zieve: “If I were advising somebody,” on whether deem and pass would run into constitutional trouble, “I would say to them, ‘Don’t do it,’” said Alan Morrison, a professor at the George Washington University Law School who has litigated similar issues before the Supreme Court on behalf of the watchdog organization Public Citizen. “What does ‘deem’ mean? In class I always say it means ‘let’s pretend.’ ‘Deems’ means it’s not true.”. . .
“You run the risk that it could be declared unconstitutional. ... If both houses vote on the substance of everything, then I’m not troubled. But if it looks like the House is never going to vote on the Senate bill, that’s very troubling. I wouldn’t want to stake the entire bill on that,” said Morrison, who authored the brief challenging the line-item veto signed by Slaughter and Pelosi. . . .
Alison Zieve, director of litigation for Public Citizen, said, “I agree it doesn’t feel good. It seems inconsistent with the wording of the relevant constitutional provision. And then the question is whether the constitution gives them flexibility to adopt procedures to streamline or guide their business.” Josh Gerstein’s Politco blog also notes that former Georgetown University law professor Marty Lederman has also been critical of prior efforts by House leaders to claim that the House and Senate passed the same statutory text when this had not, in fact, occurred. Lederman is now a deputy in the Justice Department’s Office of Legal Counsel. Based on Lederman’s analysis (see also here) it might be relevant if one could show the House leadership is acting in bad faith. What’s the problem? The text of Article I would seem to require a vote on the bill, and language in two Supreme Court opinions, INS v. Chadha and Clinton v. New York (the line-item veto case), would seem to interpret the bicameralism requirement in a fairly rigid and formalistic way. This is the legal authority that gives even many supporters of health care reform great pause. But even if “deem and pass” is unconstitutional, that does not mean federal courts would so rule. Another set of court precedents suggests that the question whether a bill in fact passed either House in accordance with that House’s rules is not justiciable. As I noted in this post concerning legal challenges to the Deficit Control Act of 2005, the 1892 decision of Marshall Field & Co. v. Clark would seem to foreclose such a challenge. In that case, the Supreme Court held that “the judiciary must treat the attestations of ‘the two houses, through their presiding officers’ as ‘conclusive evidence that a bill was passed by Congress.’” Pursuant to this decision, a panel of the U.S. Court of Appeals for the D.C. Circuit unanimously rejected a constitutional challenge to the 2005 Deficit Reduction Act. (A challenge, interestingly enough supported by Reps. Pelosi and Slaughter, among others, and opposed by the Bush Administration.) This decision, and the Field v. Clark precedent would seem to create a problem for those who would like to challenge the constitutionality of any health care bill enacted through resort to the “Slaughter Solution.” Of course, just because Congress could get away with it, does not mean it’s constitutional. Onward and upward, airforce
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