State questions constitutionality
By Michael Kranish, Globe Staff | March 8, 2010
RICHMOND – Here in the former capital of the Old Confederacy, where resistance to the supremacy of federal law has a long and tortuous history, a new battle is being waged over a question that could undercut a key part of President Obama’s health care proposal: whether Washington can require that most Americans have health insurance.
The Virginia Legislature this week is poised to become the first state to pass legislation that says citizens cannot be required to have medical insurance.
Dozens of other states are considering similar measures, possibly setting the stage for one of the greatest tests of federal power over the states since the civil rights era.
If states are allowed to opt out of the mandate, the foundation of Obama’s effort would be undermined, turning the nascent revolt here into one with national implications.
The debate goes far beyond a disagreement with the approach to health care coverage taken in Massachusetts.
Rather, Virginia’s lawmakers are focused on constitutional questions and the power of states to run their own affairs.
“The administration is trying to shift from a government by social compact, agreement between elected officials and citizens, to a government where the leaders tell the subjects what to do,’’ said Virginia Delegate Bob Marshall, a Republican and chief sponsor of the measure. “That is not what the American Revolution was about.’’
Versions of the bill have passed the Virginia House and Senate, with final passage considered all but certain. The Republican governor, Bob McDonnell, supports the measure.
Opponents of the Virginia bill say it is reminiscent of the region’s history of fighting the federal government, harking back to the 1950s when Virginia launched what is known as “massive resistance’’ to federally ordered racial integration of schools.
“If you take the subject out, this is the exact same thing that happened with massive resistance and all the states’ rights arguments,’’ said Delegate Jennifer McClellan of Richmond, a Democrat whose office is decorated with pictures of President Kennedy and President Obama. “If a state thinks the federal government is overstepping its authority, the state can’t just say, ‘I’m not going to do that.’ It is the court’s job to do that.’’
Proponents of the measure argue that there is no parallel to the past, stressing that this issue has nothing to do with race relations.
The concept of requiring citizens to purchase health insurance has been backed by many Democrats and Republicans alike in recent decades, but some Republicans have become vocal opponents in the last year as Democrats have pushed their agenda.
Called an “individual mandate,’’ it is seen as a basic component of a sweeping overhaul of the health insurance industry.
With millions of healthy people paying premiums into health plans, the cost of insurance should come down – or at least rise less quickly, advocates said.
Also, insurance companies would no longer have a reason to deny coverage for preexisting conditions, because consumers would no longer be allowed to game the system by waiting to purchase insurance until they got sick.
But anger about Obama’s health care proposals – fueled by Republican warnings about a “government takeover of health care’’ – has generated resistance in statehouses, and legislators across the country are watching Virginia’s effort.
The National Conference of State Legislatures says similar bills or state constitutional amendments are being proposed in at least 32 states.
In Arizona, for example, voters will have a chance to approve a constitutional amendment this fall that would “preserve the freedom of all residents of the state to provide for their own health care.’’
Obama won Virginia in the presidential election, but that was followed by the 2009 election of McDonnell as governor, which was interpreted partly as an ebb in enthusiasm for the president’s policies.
The effort to reject a federal mandate is not only a challenge to Obama’s proposal but also to Obama himself. The president is a former constitutional law professor who has rejected claims from Republicans that his proposed mandate is unconstitutional.
When the charge of unconstitutionality was among complaints raised by Republicans at the recent health care summit in Washington, Obama dismissed the assertion as “talking points’’ with which he strongly disagreed.
But opponents insist an insurance mandate is not legal because there is nothing in the Constitution that gives the federal government the right to penalize citizens for failing to purchase something. That is different, proponents says, from specifically enumerated federal powers such as taxation, raising an army, or regulating commerce.
But if states such as Virginia opted out of the federal mandate, the plan could unravel.
Clint Bolick, a litigation specialist with the conservative Goldwater Institute who wants to test the mandate in the US Supreme Court if it passes, said Obama’s plan to mandate insurance coverage is nothing more than an effort to require one group of people to subsidize insurance for another.
“To the extent it would unravel an important component of the bill, we would be ecstatic if that happened,’’ Bolick said.
But other constitutional scholars said that the mandate is constitutional.
The federal law would take precedence over the state measures because it is a form of taxation, according to Yale law professor Jack Balkin, who recently wrote about the matter in the New England Journal of Medicine. He said it is appropriate under Washington’s authority to regulate interstate commerce, or the provision that enable the federal government to enact measures for the “general welfare’’ of the country.
The mandate is a tax because people would be paying a penalty only if they don’t have health insurance, just as they pay a penalty for failing to file taxes, Balkin said in the article.
State laws like Virginia’s proposal, Balkin said in an e-mail, “would be unenforceable unless federal health care legislation specifically provides for an opt out; it currently does not.’’
Former governor Mitt Romney, who pushed through the Massachusetts mandate for insurance under his health care plan, said yesterday on “Fox News Sunday’’ that requiring people to have insurance is the “ultimate conservative plan. We said people have to take responsibility for getting insurance, if they can afford it, or paying their own way. No more free-riders.’’
That prompted the Democratic National Committee to send out a press release saying that Romney supports a federal mandate. But Romney went on to say that Massachusetts “solved this at the state level – not a federal plan, but a state plan. This is a federalist nation. States should be able to solve their own problems.’’
A spokesman did not immediately respond to a question about whether Romney believes a federal mandate is unconstitutional.
Virginians pushing their opposition said Obama’s plan is nothing less than an intrusion on their basic rights.
“This is a penalty for doing nothing,’’ said Marshall, the delegate who is the chief sponsor. “Hey, I’m doing nothing, leave me alone.’’
Senator Fred Quayle, a Republican who is the state Senate’s sponsor, said the proposed mandate is unprecedented. “I don’t think in the entire history of this country there has ever been any act of Congress requiring a citizen to buy anything,’’ he said.
A number of respected organizations that have looked at the issue have said it is difficult to predict what the Supreme Court might decide.
The nonpartisan Congressional Research Service recently reported that determining whether the mandate is constitutional under the commerce clause “is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or service.’’