Health care debate: Dueling over insurance

ST. PAUL, Minn. —

In more than a dozen statehouses across America, a small but growing group of lawmakers has been pressing for state constitutional amendments that would outlaw a crucial element of the health-care plans under discussion in Washington: the requirement that nearly everyone buy insurance or pay a penalty.

Approval of the measures, the lawmakers suggest, would set off a legal battle over the rights of states versus the reach of federal power — an issue that is, for some, central to the health-care debate.

Opponents of the measures and some constitutional scholars say the proposals are mostly symbolic, intended to send a message of political protest, and have little chance of succeeding in court over the long run. But they acknowledge the measures could create legal collisions that would be both costly and cause delays to health-care changes, and could be a rallying point for opponents in the increasingly tense debate.

So far, the notion has been presented in Arizona, Florida, Michigan, Minnesota, Ohio, Indiana, North Dakota, New Mexico, West Virginia and Wyoming, although it already has failed in the latter five. Lawmakers in Georgia, Kansas, Louisiana and Utah have said they soon will offer similar measures in what has grown into a coordinated effort at resistance. (Arizona, which has placed the amendment on its ballot in 2010, seems the furthest along.)

Here in Minnesota, like in many of the other states, the move to amend the state constitution is being driven by a handful of Republican lawmakers. The proposed amendment itself does not advocate some particular alternative plan but sets what its authors see as ground rules for what any future health-care system should — and should not — include.

"All I'm trying to do is protect the individual's right to make health-care decisions," said state Rep. Tom Emmer, a Republican. "I just don't want the government getting between my decisions with my doctors."

Proposed constitutional amendments began cropping up after 2006, when Massachusetts passed a sweeping state law meant to create nearly universal health coverage for residents. Elsewhere, some leaders — opposed to the possibility of insurance mandates or government-run systems — began suggesting constitutional amendments to block such measures from their own states.

In Arizona, with help from Dr. Eric Novack — an orthopedic surgeon who says his intent was not "some grand secessionist plot" but merely a health-care overhaul with protections for individuals' rights — an amendment first went before voters in 2008. The idea lost, but by fewer than 9,000 votes among more than two million cast.

This year, Arizona's Legislature, dominated by Republicans in both chambers, voted to send the question back to the ballot in 2010.

Clint Bolick, litigation director at the Goldwater Institute, a conservative research group based in Arizona that favors free enterprise, and who has helped lead Arizona's efforts, said he believed the inevitable "legal clash" — if the federal government adopts a health-care law and if states change their constitutions — was winnable for the states. Although the U.S. Constitution's supremacy clause ordinarily allows federal law, in essence, to trump a state law that conflicts with it, Bolick said that was not always the case, depending on "the strength of the state interest."

Bolick said he viewed two recent Supreme Court cases, related to an education question in Arizona and a utility district in Texas, as indications that the court might be open to such a state claim.

But several other legal experts said they saw little room for such a challenge. "States can no more nullify a federal law like this than they could nullify the civil-rights laws by adopting constitutional amendments," said Timothy Stoltzfus Jost, a health-law expert at Washington & Lee University School of Law.

Mark Hall, a law professor at Wake Forest who has studied the constitutionality of mandates that people buy health insurance, said, "There is no way this challenge will succeed in court."

Even Randy Barnett, a Georgetown Law professor who has written about what he views as legitimate constitutional questions about health-insurance mandates, seemed doubtful.

"While using federal power to force individuals to buy private insurance raises serious constitutional questions, I just don't see what these state resolutions add to the constitutional objections to this expansion of federal power," Barnett said.

Still, Emmer, who is a candidate for governor in Minnesota, said he was hopeful. He emphasized that such an amendment — regardless of court battles over a federal plan — would spare Minnesotans from the potential downsides of some future state health-care plan.

And this whole amendment notion, he said, would not prevent anyone from taking part in a federal health program; it would merely prevent anyone from being forced to do so.

Of legal experts who discount the states' chances of trumping a federal plan, Emmer seemed unconvinced.

"They're essentially saying that state constitutions are meaningless, and I disagree," he said. "And tell me where in the U.S. Constitution it says the federal government has the right to provide health care. This is the essence of the debate."