As would be expected in the face of recently passed health care legislation this sweeping and controversial, pro-liberty citizens have been stepping out to oppose the bill. One of the unusual tactics they have used is to turn to their state legislatures for what they see as protection from the encroachments on their liberties from the federal government. Legislation declaring a state’s opposition in one way or another to items in the federal health reform has been introduced in 37 states. Many states have even passed this legislation, and had it signed into law by their governors.
A hearing was recently held on one of these pieces of legislation, Maryland House Bill 603, the Health Care Freedom Act of 2010. This bill would add an amendment to the Maryland constitution making it so that no person in Maryland would have to comply with an individual mandate to purchase health insurance, and that no person in Maryland will have to pay fees or penalties for refusing to buy health insurance. In short, it would preserve the freedom of Marylanders to contract with doctors they want to contract on their own terms, if they choose to do so.
There was much talk at the hearing about the Constitution, individual rights, and sovereignty of the states. One of the individuals providing testimony in favor of the bill at the hearing was Mark Kreslins, who leads a citizens’ political organization in Frederick, Maryland, known as We Surround Them (WST). WST is an organization dedicated to returning government to what they believe is the original intent of the Founding Fathers as enshrined in the founding documents of American.
They believe that the Constitution limits the federal government to 17 defined powers in Article 1, Section 8. Any government action which extends beyond the enumerated powers in Article 1, Section 8, is thus unconstitutional. They believe that the Constitution reserves the vast majority of state power for the states. The states, after all, existed before the federal government, and created it for clearly defined purposes. And the 10th Amendment to the Constitution states that all powers not delegated to the federal government are reserved to the states, or to the people. If the federal government was created with the intention that it have essentially limitless power to do as it wishes, then the 10th Amendment seems to be a nonsensical inclusion into the Constitution.
Mr. Kreslins testified that an individual mandate would be an unconstitutional exercise of federal authority, as the Constitution never gives the federal government the authority to mandate that all people buy insurance, and that it is the responsibility of the states to stand up for their sovereign rights, and to stand up for the rights of their citizens to own their own property and to do with it what they wish. It is thus entirely within the states’ authority, according to him, to refuse to obey this unconstitutional action on behalf of their citizens.
Many prominent constitutional scholars agree with state legislatures that an individual mandate for health insurance would exceed the power given to the federal government in the Constitution. For instance, Heritage Foundation legal scholars and well-known legal scholar Randy Barnett (who was a lead attorney in the Gonzales v. Raich case before the Supreme Court in 2005), have argued that the individual mandate is not only an unprecedented (few would debate this), but also an unconstitutional exercise of federal power.
Citizens fighting for individual liberty have gained some powerful allies in many state legislatures. The constitutional logic for state sovereignty is far from universally accepted by constitutional scholars. It will likely take a Supreme Court case to decide whether these nullification attempts will succeed in shielding state citizens from the most far reaching aspects of health care reform. But pro-liberty activists have not given up, even after passage of the vast health care reform bill.
In the spirit of full disclosure, Mark Kreslins is the author’s future father-in-law, the primary reason why the author was at the hearing at all.