“Health Care Freedom” Bills Pass Virginia Senate

The Virginia State Senate passed “health care freedom” bills giving citizens the right not to be forced to buy health insurance.  This sets up a potential conflict with the federal health care legislation backed by President Obama and congressional leaders, which contains an “individual mandate” requiring uninsured individuals to buy health insurance.

The bills have a useful function, but not the one offered by many of their supporters, and the federal “individual mandate” is constitutionally dubious for quite a different reason than many of its opponents claim.

Supporters of the bills often claim that the “individual mandate” violates the Tenth Amendment.  But this is the wrong constitutional objection to make. The Tenth Amendment is not violated by federal regulation of private citizens, but rather (under the Supreme Court’s recent decisions) by federal regulation aimed at the states as states — like unfunded mandates ordering state and local officials to carry out federal gun control laws (struck down in the Printz v. United States case) or ordering a state to take title to nuclear waste (overturned in the New York v. United States case), rather than merely conditioning federal funds on its agreeing to do so.

It is the Commerce Clause — not the Tenth Amendment — which is offended by overly broad federal regulation of private citizens, since Congressional regulatory authority is based chiefly on the Commerce Clause, which the Supreme Court (in the United States v. Morrison case) said does not reach non-economic activity.  If Congress cannot regulate non-economic activity simply because it has a major effect on the national economy — which is what the Supreme Court said in the Morrison case — then it can reasonably be argued that Congress cannot regulate complete inactivity, like a young healthy person’s refusal to buy health insurance, even if it may potentially have an effect on the economy.

State officials automatically have standing to raise Tenth Amendment claims –but such claims won’t work against ObamaCare’s individual mandate.  They do not, however, ordinarily have standing to raise Commerce Clause challenges to federal laws, since Commerce-Clause limits are chiefly designed to protect private citizens rather than states against overbearing federal power.  When Congress exceeds its power under the Commerce Clause, that does not necessarily conflict with or violate state law, even if it violates the rights of individual citizens.

The Virginia health care freedom legislation, however, changes this, by creating a direct clash between state and federal law that gives state officials like Attorney General Ken Cuccinelli standing to challenge ObamaCare’s “individual mandate” on commerce clause grounds.  Why?  Because state officials do have broad standing to challenge federal laws that preempt state laws, since a state is deemed to suffer irreparable injury when its law is preempted by federal law.  See, e.g., Coalition for Economic Equity v. Wilson (1997).  In such cases, the courts have jurisdiction to determine whether the federal law is valid (in which case it automatically preempts the state law under the Constitution’s Supremacy Clause) or invalid (in which case it is struck down).

In short, the Virginia health care freedom legislation does nothing to affect the substantive validity (or invalidity) of ObamaCare’s individual mandate, but it does expand who can challenge it, by allowing Virginia officials — not just uninsured individuals who don’t want to buy health insurance — to challenge the individual mandate in court, thus adding legal firepower to any constitutional challenge.  Virginia Attorney General Kenneth Cuccinelli rightly grasps this, citing its usefulness in buttressing his “standing” to challenge the health care legislation in court in a recent Washington Examiner news story.

The “individual mandate” is an unprecedentedly broad attempt to regulate under the Commerce Clause. As the Congressional Budget Office noted in 1994,”A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

As a news story notes, in Supreme Court rulings issued in 1995 and 2000, “the high court said the commerce clause is limited to economic activities that substantially affect interstate trade.”  As UPI notes, “the weight of Supreme Court jurisprudence seems to favor a Commerce Clause challenge” to the health care legislation.

Earlier, Senator Orrin Hatch argued that the “individual mandate” in the health care legislation, which forces people to buy health insurance, is unconstitutional. The Florida Attorney General, Bill McCollum, likewise questioned its constitutionality.

The health care legislation backed by the Obama Administration is deeply controversial, with most Americans opposing it.  It would reduce lifesaving medical innovation, raise many taxes, drive up insurance premiums and the deficit, break many campaign promises, and impose heavy burdens on state budgets. It would also jeopardize the quality of medical care for many, while imposing restrictions that failed when tried at the state level, and ignoring advice from federal and academic experts, and lessons from countries with universal health care, about how to keep costs down.

Even absent the “health care freedom” legislation, Virginia might have standing to challenge the legislation’s compulsory insurance provisions — but probably only as to provisions that apply to state employees or contractors, not requirements applicable solely to uninsured private individuals.