(CNN) - Lawmakers in many states are trying to make it illegal to mandate that everyone buy health insurance - one of the key parts of the Democrats' health care reform efforts in Washington.
In Kansas, lawmakers filed a resolution this week that aims to alter the state constitution to do so. State Sen. Mary Pilcher Cook, a co-sponsor of the legislation says, "States have a duty to protect their citizens' liberty." Could these proposed amendments affect health care reform in the nation's capital?
Fact Check: Can state governments overrule federal regulations on health care?
(Get the facts and the bottom line after the jump)
- 31 states have filed or prefiled the Freedom of Choice Health Care Act, according to the American Legislative Exchange Council (ALEC), which drafted the act. ALEC supports limited government.
- "It's symbolic opposition," said Robert Schapiro, a constitutional law professor at Emory University. "State governments cannot overrule federal legislation on health care."
- Schapiro also said there has been some discussion about letting states opt out, which would be a different case. "But, if Congress does not give the states the ability to opt out, the states cannot legally do so on their own," he said.
- Pilcher Cook says that some constitutional law scholars would disagree with Schapiro, because the state or an individual could file a lawsuit. Schapiro responds, "Even without a state law, a person could challenge the federal mandate, and the existence of a state law is essentially irrelevant for federal constitutional purposes."
Bottom Line: States must comply with any health care reform that passes in Congress, unless they're allowed to opt out. States would have the option to challenge the mandate in court.
Those of you who continue to bring up the auto insurance arguement are missing one extremely key piece. The ability to own and operate a vehicle is a privilege, NOT a right. As such, if you wish to take advantage of that privilege, you must show means to stand accountable for adverse effects to your actions (insurance). Show me where driving is a right, and I'll shut up.
"State governments cannot overrule federal legislation on health care."
Unless the passage of that legislation is found by the Supreme Court to be unconstitutional.
I would dearly love to have the Court hear a high-profile case challenging the Federal government's routine violations of the tenth amendment.
To all you people comparing this to car insurance, let me point out that you are only required to purchase liability insurance. That way when you injure a person or damage property with your vehicle, the injured party can be compensated. You have to pay that insurance for the PRIVILEGE of driving. If you don't want to pay, don't drive. There is no comparison to mandated health insurance.
Additionally, if you want to reduce healthcare costs, you have to reduce the demand. Until people stop living unhealthy lifestyles and damaging their own bodies, the cost to maintain those unhealthy lifestyles will go up. I should not have to subsidize the healthcare costs for people who won't exercise or eat a healthy diet.
@Lynn: "Isn't it mandatory in all states we carry auto insurance?"
That's not a Federal requirement. Such laws are made by the states.
That's the crux of the issue–the limits on Federal power. A "strict constructionist," like me, can make a very good case that the Federal government routinely ignores the limits of the powers given it under the Constitution.
found work without help of stimulus or obama: February 4th, 2010 4:45 pm ET
I cant wait for Obama to try to force me to buy insurance. Simply put, Obama cannot force me, so try and see what happens.
You sound like a two year old. I sure would like to know what you plan to do if Obama makes you buy health insurance.
For those of you comparing car insurance. You are mandated to have liability. It's to cover the people you damage threw careless acts. Full coverage is mandated by dealerships to cover them when you are careless while a loan exists. I don't want my taxes raised because people are careless with their finances or child birthing behaviors. I'm in favor of helping those who NEED it. And that number isn't 50 million.
Those of you prattling on about the 10th amendment and "state's rights" might want to look at the supremacy clause of the United States Constitution, article VI, clause 2, which states that the laws of the federal government "shall be the supreme Law of the Land" and that "the Judges in every State shall be bound thereby." It's called preemption, and that's what this constitutional lawyer is talking about. Just like ERISA and COBRA and any number of other federal laws that preempt state laws.
These state laws are just political maneuvers to oppose health care reform. They are ill-advised and disingenuous and those supporting them know full well they will not withstand constitutional scrutiny. Republicans just like to waste the legislatures' - and ultimately the courts' - time with this frivolousness. They should be ashamed of themselves. All I can ask is: Why do they hate the Constitution?
ok enough with the car insurance thing. These are 2 different issues. First if you want to drive a car you need to buy car insurance to protect those who you may hit or kill if it is your fault. this is all that is required. You can opt out of this by simply not driving a car. you have a choice. However when there is no choice you will have health insurance or get fined you have no opt out. Further more I pay for my own car insurance the government and my neighbors do not. In the health insurance bill. I will be paying for others health insurance. People complain they cant afford health insurance do you think youll be able to when you have to pay in for everybodies health insurance. The government gets its money from the people it is not magically produced. Stay out of our pockets and find a way to help those who are willing to participate and work at helping themselves. Handouts never work they are always abused. Free healthcare has never worked for the long term and never will it is unsustainable and I for one will not give up my pride to the government and live off of the mind controlling programs they produce. If you are capable stop playing the victim and go get the rights you are granted. Life Liberty, and the "PURSUIT of happiness. That means you gotta work for it not hold your hand out and wait for it.
RE: the Constitutionalist
So then .... is health care a privilege or a right? Does every citizen have a right to health care, or is health care a privilege, only for those who can afford it?
@SC-Pub "no" more: "So, these idiot state right wing nuts had rather pay medicade for those who don't have insurance as opposed to them buying it ? This really makes sense."
No, we "States Rights wingnuts" aren't interested in being forced by the Federal government to pay for any kind of health care.
Medicaid is a violation of the tenth amendment, as would be the current Congressional health care proposals.
Now, if the states want to provide some kind of health care system, that's their prerogative.
I'm not, by the way, an idiot.
Why not reform private Insurance who rip us all up to shreds..and bankrupt those with health bills..
I thought you guys can do anything you want ... LOSER
Show me where using a hospital is a right... That is a dumb argument Mr. Constitutionalist. The problem is people like you get to use the hospital without health insurance.
"Tom February 4th, 2010 5:03 pm ET
I would like to Federal Government to show under which part of the Constitution that it has been granted the authority to force States to adopt a national health care system? The Tenth Ammendment deals with the seperation of State and Federal powers, and it doesn't have anything in there specific to allowing the Federal Government to force health care. Besides, if the public doesn't want it, what is the Federal Government going to do, arrest all of us? Please!"
Article 1, Section 8 of the Constitution gives Congress the power to pass any laws deemed "necessary and proper".
This was upheld by McCulloch v. Maryland (1819) and has been upheld consistently since. Chief Justice John Marshall's opinion basically said that a Constitution listing all of Congress' powers "would partake of a prolixity of a legal code and could scarcely be embraced by the human mind." Since the Constitution could not possibly enumerate the "minor ingredients" of the powers of Congress, Marshall "deduced" that Congress had the authority to establish a bank from the "great outlines" of the general welfare, commerce and other clauses. Under this doctrine of the necessary and proper clause, Congress has sweepingly broad powers (known as implied powers) not explicitly enumerated in the Constitution.
Congress could conceivably pass a law that all men over the age of 50 get vasectomies for the common good because old sperm is not healthy and can produce children with conditions that would tax the system. It could be contested, but it would still be federal law.