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STATES SAY..."WE DON'T NEED NO STINKIN' OBAMACARE!!!
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March 19 (Bloomberg) -- If Democratic leaders ever get a health-care overhaul through Congress, they could find themselves only halfway through the slog.
While no arm is left untwisted, no parliamentary maneuver ignored on Capitol Hill, state legislatures have been busy themselves passing laws to defeat whatever package emerges.
Idaho wants no part of any overhaul dreamed up in Washington. Neither does Virginia or Arizona, their legislators say.
“The citizens of our state won’t be subject to another federal mandate or turn over another part of their life to government control,” Idaho Governor Butch Otter declared this week when he became the first governor to sign into law a so- called Health Freedom Act.
Or, as he might have put it in “The Treasure of the Sierra Madre,” they don’t need no stinkin’ health-care reform.
That lots of people are riled up about health care and the way it’s being handled, that Republicans have made it their mission to stop it, we know already. That health care is now injecting new energy into a reborn states’ rights movement means reformers may have a long way to go after they reach the finish line in Washington.
The obstacle doesn’t have to be a killer, not if court precedent determines the outcome. But the U.S. Supreme Court that John Roberts heads has shown a willingness to topple precedent and even redefine the issues in a case to get the outcome it wants.
Judicial Activism
That is the sort of judicial activism the court displayed when it struck down campaign finance restrictions in January.
But let’s get back to Idaho. And Virginia and Arizona.
Under the banner of health-care freedom, mostly Republican legislators in those states have registered their belief that citizens shouldn’t have to sign up for health insurance they don’t want -- challenging a central mandate of the federal legislation.
The Idaho law says every Idahoan is free “to choose any mode of securing health-care services without penalty.” It then instructs the attorney general to go to court to make that happen.
Already, the law has legal problems of its own. Idaho Attorney General Lawrence Wasden points out that the state constitution gives him the job of deciding whether to go to court and when. No mere statute can change that.
And Wasden isn’t ready to declare his position.
“If Congress does pass legislation, we will review it and determine at that point whether we can bring a lawsuit that has merit,” says Wasden spokesman Bob Cooper.
Virginia’s Route
Virginia’s legislature went a different route. Without telling the attorney general how to do his job, the lawmakers passed a bill that says no Virginia resident “shall be required to obtain or maintain a policy of individual insurance coverage.”
Even advocates say that amending the constitution is a legally preferable route to passing a mere statute.
That takes time, so lawmakers pushed this stopgap measure into place until they could pass an amendment and submit it to popular vote, according to Christie Herrera, health task force director at a free-market, pro-federalist group, the American Legislative Exchange Council.
The Arizona legislature has already gone the amendment route and passed a proposal that will appear on the ballot in November.
But that isn’t law yet. And if you put those three all together, they don’t add up to much of a roadblock at this point.
Gaining Momentum
So advocates point to their movement’s momentum. Beyond the three states, some 30 to 35 others have bills pending, they are quick to say.
There is a long road between dropping a bill in a hopper and attending a signing ceremony. And then, whatever state efforts get that far would have to survive a federal court fight.
“The ivory tower folks will tell you, ‘No, they’re not going anywhere,’” Otter told reporters. “But I’ll tell you what. You get 36 states, that’s a critical mass. That’s a constitutional mass.”
That number approaches the 38 states it takes to ratify an amendment to the U.S. Constitution. Otter is getting ahead of himself, given that his own attorney general, a fellow Republican, has already said he may or may not try to enforce the new law.
Public Frustration
There is something to be said for momentum, for tapping into public frustration and organizing nationally. But to claim some sort of revolution based on what has happened so far requires heavy spinning.
As for a smack-down in federal court, the states’ rights crowd claims the 10th Amendment means what it says: states have authority to do everything that the Constitution doesn’t assign to the federal government.
Their problem is Article 6 of the Constitution, which says federal laws are “the supreme law of the land.” And supreme means supreme.
Plus, the U.S. Supreme Court in recent decades has mostly rejected 10th amendment claims when state and federal laws collide. It did so in 2005 when it said California’s medical marijuana law takes a back seat to federal drug laws.
But that was before Roberts and Samuel Alito took their seats. And it was about some wacky, lefty California law.
If these states ever do pass laws that are challenged all the way to the Supreme Court, they just might find enough friends there to get them over whatever legal gaps their laws contain.
Or maybe by then, Idahoans, Virginians and Arizonians will decide that being denied health-care insurance because of preconditions or losing insurance when they lose their jobs aren’t such good ideas, after all.
Click on “Send Comment” in sidebar display to send a letter to the editor.
--Editors: Jim Rubin, James Greiff.
To contact the writer of this column: Ann Woolner in Atlanta at [email protected].
To contact the editor responsible for this column: James Greiff at [email protected].
[link to www.businessweek.com]
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