Dozens of states are considering laws to legally ban the individual insurance mandate that lies at the heart of President Obama's proposed overhaul of the U.S. healthcare system.
Many states have complained that ObamaCare infringes on states' rights under the U.S. Constitution, because it requires residents to purchase healthcare insurance.
According to the National Conference of State Legislatures (NCSL), at least 36 state legislatures are now using the legislative process "to limit, alter, or oppose selected state or federal actions, including single-payer provisions and mandates that would require purchase of insurance."
Twenty-six states have proposed amendments to their state constitutions that would ban the individual mandate requirement. Thirteen other states are moving to block the individual mandate by altering state statutes rather than amending their state constitutions, the NCSL reports.
Many legal scholars assume federal law would automatically overrule any state-level legislation. But other scholars say that would not necessarily occur in the case of healthcare reform, because there is no precedent for regulating interstate commerce that isn't already taking place.
The whole basis of the individual mandate – the federal requirement in ObamaCare that all citizens either carry insurance or be subject to stiff tax penalties that would be administered by the Internal Revenue Service -- is that individuals aren't engaging in a transaction that the federal government seeks to require.
"If you can do that under the premise it has some ethereal impact on the economy, then at that point what would prevent the federal government from requiring any purchase?" asks Robert Alt, senior legal fellow and deputy director of the Heritage Foundation's Center for Legal and Judicial Studies.
Alt says requiring an insurance purchase goes far beyond the federal government's current role of regulating interstate commerce. Alt believes the individual mandate authority is such a broad directive that there is a good chance a legal challenge – which would actually come from the individual citizens affected rather than from the states themselves – would succeed.
"I think that case would be extraordinarily strong," Alt tells Newsmax, "again, because of the reach by Congress with regard to this mandate. We use the term unprecedented lightly in many cases. But in this case, it truly is. You cannot point to a single precedent that would be this bold and far-reaching."
If Alt is right, it means that even as congressional Republicans battle against Democrats' over the proposed overhaul of the U.S. healthcare system, yet another engagement is waiting for Democrats at the state level.
Under current healthcare reform proposals, according to Republicans, the IRS would be given authority to conduct audits to verify that citizens obtain adequate health insurance.
Two states, Idaho and the commonwealth of Virginia, have already enacted legislation to thwart ObamaCare. "In general the measures seek to make or keep health insurance optional, and allow people to purchase any type of coverage they may choose," the NCSL Web site states.
The new Virginia law states: "No resident of this Commonwealth, regardless of whether he has or is eligible for health insurance coverage under any policy or program provided by or through his employer, or a plan sponsored by the Commonwealth or the federal government, shall be required to obtain or maintain a policy of individual insurance coverage. No provision of this title shall render a resident of this Commonwealth liable for any penalty, assessment, fee, or fine as a result of his failure to procure or obtain health insurance coverage."
Such language obviously sets up a constitutional confrontation with the federal government, should the ObamaCare plan squeak through Congress and be signed into law by the president.
The Idaho law, similarly, protects the individual's right to choose whether they want insurance coverage. It also directs the state's attorney general to sue the federal government if it enacts legislation requiring Idaho residents to purchase healthcare insurance.
Two other states, Utah and Arizona, have also passed the legislation.
The measure in Utah is awaiting the governor's signature. It would prohibit any agency of the state from implementing any part of federal health care reform without the state legislature "specifically authorizing the state's compliance or participation in, federal health care reform," according to the NCSL.
The Arizona measure orders that "no law or rule shall compel any person or employer to participate in any health care system." It has passed both houses of the Arizona legislature, but cannot become law until citizens approve it. It will be on the ballot in the November 2010 elections.
Many states do not allow a constitutional amendment to appear on the ballot until the legislature approves the measure two years consecutively. Those states might have to wait until 2012 to enact a mandate prohibition.
According to the bipartisan NCSL association, as of March the states filing formal resolutions or bills include: Alabama, Alaska, Arkansas, California, Colorado, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Washington, West Virginia, Wisconsin and Wyoming.
Alt says that states mulling anti-mandate legislation are sending a strong message to their Democratic representatives "that their constituents back home may not be on board with this measure."
One powerful force now pushing states to adopt anti-mandate provisions: the nascent tea party movement.
"We're 100 percent behind it and promoting it and pushing our state representatives to pass laws to protect our rights," Everett Wilkinson, a member of the national leadership council of Tea Party Patriots, tells Newsmax.
"All rights not enumerated in the Constitution are reserved to the people and to the states," he says. "So we are saying healthcare is not defined as a right in the Constitution.
"We can decide on a state-by-state basis whether we want to abide by [a mandate] or not, because it's a state's rights issue," he says. "It's not a federal rights issue, because it's not enumerated in the federal Constitution."
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