Healthcare Reform and the Constitution
Immediately after the president signed the Patient Protection and Affordable Care Act (PPACA) in March Attorneys General from 18 states filed a lawsuit against the federal government, declaring that the legislative and executive branches of the federal government exceeded their constitutional authority in passing PPACA. Florida's Bill McCollum is one of the lead AGs on the case.
While many AG's across the country are suing the federal government, about 30 states across the country are working on state laws and ballot initiatives to essentially nullify the PPACA in their state. The Florida legislature passed HJR37 during the 2010 session, which is a ballot initiative placing the decision in the hands of the voters to 'nullify' the PPACA in Florida.
AG Lawsuits
The lawsuit filed by Florida's AG McCollum and the other states alleges that the individual mandate in which every American purchase a health insurance policy (or face a penalty) is unconstitutional. The lawsuit specifically references Article I and the 10th Amendment of the US Constitution.
The Constitution empowers the federal government with specific and limited powers, leaving all others to the states. But, it is clear that the federal government no longer adheres to those limits, nor is it even concerned with it when enacting legislation.
Article I, Section 8 of the US Constitution references the 'Powers of Congress'. One of the powers that congress has is 'to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes'. This is otherwise known as the ‘Commerce Clause’.
The Tenth Amendment of the Bill of Rights in the US Constitution attempts to clarify that it is the states and the people who have all the powers not assigned to the federal government. It states 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people'.
After reading those two simple statements, one wonders how we could have arrived to the present day situation where the federal government is taking control of every aspect of the US economy and life, and where the states and the people are being relegated to mere subjects of the federal government.
Ever since the New Deal error of the 1930's the federal government has used the Commerce Clause to justify its expanded role over the states. But, in 1995 the Supreme Court decided on a case (US v. Alfonso Lopez Jr.) that for the first time set limits on Congress' power under the Commerce Clause. Congress had previously outlawed the possession of firearms within a school zone (Gun-free School Zone Act of 1990) and used its power to regulate commerce as justification. Lopez was convicted in 1992 of violating this law for having brought a handgun to school. Ultimately, after a lengthy court battle, the Supreme Court held that while "some of our prior cases have taken long steps down the road giving great deference to congressional action" they refused to do so in this case because" to do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local." Whether one agrees with premise that guns should not be allowed on school grounds or not, to the Supreme Court the law challenged in this case was clearly an attempt by the federal government to wipe away the lines between what is interstate commerce and what is not. What the courts were saying is that this is not a federal case. If the states want to prohibit guns on school grounds, they should enact laws.
Another case where the Supreme Court restricted the federal government's use of the Commerce Clause was US v. Antonio Morrison. In this case Antonio Morrison was accused of raping a woman at Virginia Tech University. A state grand jury failed to indict Morrison and the accuser brought federal charges against Morrison under the federal Violence Against Women Act of 1994. In this law the congress attempted to bypass the individual state's power to police on the grounds that a gender living in fear of crime could negatively affect commerce nationwide. In 2000 the Supreme Court decided in this case that the federal government had exceeded its powers under the Commerce Clause. They again decided that, while the intent may have been well-founded, the federal government does not have the ability to usurp state powers because it believes the state did not properly prosecute a crime.
While they illustrate the Supreme Court's willingness to somewhat limit federal overreach regarding the Commerce Clause, the PPACA is distinctly different than either of these two cases. It mandates the compulsory purchase of something. It requires that not only does every individual have to buy health insurance or be punished, but it effectively makes compliance a condition of being a legal resident in the United States. This is the first time in US history that the federal government is attempting to force its citizens to purchase something irregardless of whether or not they wish to. The lawsuit filed by the AG's (as noted above) is premised upon the fact that if the federal government is allowed to force its citizens to purchase health insurance using the Commerce Clause as its basis, then there is no limits to its ability to destroy personal liberty under this clause.
State Nullification
Nullification is the principle where the state asserts its right to invalidate (nullify) any federal law it considers unconstitutional. Its basis is that sovereign states formed the union and they hold the ultimate authority when considering the limits of the powers of the federal government.
In Federalist Paper #45 James Madison clearly and succinctly describes the rolls of the federal and state governments:
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
It would be a difficult stretch to find in this statement that the federal government had the jurisdiction over creating a national health care system, let alone the requirement forcing its citizens to participate in it.
The states have a long history of using nullification to declare that they won’t comply with a federal statute. Nullification was a concept first introduce in 1798 by Thomas Jefferson to the Aliens and Seditions Acts passed under the John Adams administration. Thomas Jefferson and James Madison were vehemently opposed to these laws as a direct violation of the Tenth Amendment. They wrote, and Kentucky and Virginia adopted, what are known as the 'Kentucky and Virginia Resolutions' in response, which stated that it was the federal government who served the needs of the states (not the other way around), and that states could nullify laws that it believed were unconstitutional.
Following the passage of the Embargo Act of 1807 Massachusetts nullified the law citing that it was "unjust, outrageous, and unconstitutional" and stating that it "was not legally binding on the citizens of this state". Eventually all of New England (and Delaware) formally nullified this law stating that it was an unconstitutional usurping of state powers.
There are many other instances of states taking the position that will not abide by federal laws that they consider unconstitutional. The power of the states banding together to nullify laws they consider unconstitutional are not ignored by the federal government. One recent example of this is the states rejection of the federal Real ID Act (and here). Currently, there are over 30 states working on legislation at various stages that will nullify the PPACA in their state. As previously noted Florida is one of those states. HJR37 is a ballot initiative placing the decision in the hands of the voters to 'nullify' the PPACA.
HJR37 Ballot Initiative
HJR37, otherwise known as the Florida Health Care Services Freedom Act, was passed during the Florida legislature 2010 session. It basically states that Florida voters will decide on the November 2010 ballot on an amendment to the Florida State Constitution which prohibits laws or rules from compelling any person, employer, or health care provider to participate in any health care system. The intention is to preserve the freedom of all state residents to provide for their own health care in the way they deem fit for themselves. And, by placing this on the ballot, state representatives are declaring that the people of Florida will decide on this very important matter. This is a clear notice to the federal government that Floridians will decide what type of health care they want...not the federal government. With the passage of this ballot initiative by the people, the state of Florida will in effect be 'nullifying' any federal laws with regard to health care that they consider to be unconstitutional.
The following is the actual amendment wording to be placed on the ballot:
HEALTH CARE SERVICES:
Proposing an amendment to the State Constitution to ensure access to health care services without waiting lists, protect the doctor-patient relationship, guard against mandates that don't work, prohibit laws or rules from compelling any person, employer, or health care provider to participate in any health care system; permit a person or an employer to purchase lawful health care services directly from a health care provider; permit a health care provider to accept direct payment from a person or an employer for lawful health care services; exempt persons, employers, and health care providers from penalties and fines for paying directly or accepting direct payment for lawful health care services; and permit the purchase or sale of health insurance in private health care systems. Specifies that the amendment does not affect which health care services a health care provider is required to perform or provide; affect which health care services are permitted by law; prohibit care provided pursuant to general law relating to workers' compensation; affect laws or rules in effect as of March 1, 2010; affect the terms or conditions of any health care system to the extent that those terms and conditions do not have the effect of punishing a person or an employer for paying directly for lawful health care services or a health care provider for accepting direct payment from a person or an employer for lawful health care services; or affect any general law passed by two-thirds vote of the membership of each house of the Legislature, passed after the effective date of the amendment, provided such law states with specificity the public necessity justifying the exceptions from the provisions of the amendment. The amendment expressly provides that it may not be construed to prohibit negotiated provisions in insurance contracts, network agreements, or other provider agreements contractually limiting copayments, coinsurance, deductibles, or other patient charges.
Yes, it is a long statement to place on a ballot for voters. But, by reading it now and understanding its content, we won't be surprised in the voting booth. We will know in advance what it says and can confidently vote to approve this amendment come November.
According to Senator Carey Baker, who was the senate sponsor of this bill, the reason the legislature took the approach of amending the state constitution, instead of simply passing a law, was because they wanted to make sure that no future legislature could easily modify it. If they were to pass a law, lawmakers could then tinker with it or outright repeal it during any legislative session. If it were in the state constitution, modifications would require additional votes by the people.
When we get to the voting booth in November, it is important that every voter be familiar with this proposed amendment. If successful, it would be a major impediment to the continuous federal encroachment on the states and the lives of the people. If successful in other states, it would essentially nullify the PPACA across the country, as states refuse to comply with the law. Finally, there will be an onslaught of advertising and newspaper editorial coverage in opposition to the HJR37 ballot initiative leading up to the November vote. Those who want a federal takeover of the healthcare industry will be working overtime to attempt to persuade us that voting yes is wrong-headed and that the PPACA is really a benefit to us all.
Educate yourself!
