Right now the battle over government-run health care is centered in Washington D.C. Numerous protests have been held at the Capital, including the massive 9.12 Project march, where hundreds of thousands traveled from all over the country to protest excessive spending, bailouts, and big government proposals for reforming healthcare. Another ten thousand showed up in November for a “House Call” protest, arranged on very short notice, specifically targeting healthcare legislation pushed by Democrats. These same activists are also burning up the phones before every major vote. Despite the unprecedented strength of this small government uprising, we must face the very real possibility that, while these protests will no doubt keep participants motivated leading up to the next election, they may not be enough to stop passage of ObamaCare. Depending on the outcome of today’s fight, tomorrow’s could very well be at the state level, and eventually in the courts.
According to the American Legislative Exchange Council, lawmakers in 24 states have at least pledged to introduce legislation modeled after their Freedom of Choice in Health Care Act, which nullifies an individual mandate to purchase federally approved health insurance. This amounts to a bold reassertion of the 10th Amendment, that long ignored protection of state sovereignty against federal infringement. Thirteen of these states have already filed or pre-filed constitutional amendments to protect the rights of individuals to make their own healthcare decisions.
One of these states is Arizona, where voters will decide the issue by statewide ballot in 2010. When voting on the Arizona Health Insurance Reform Amendment, citizens of the Grand Canyon State will have an important opportunity to take the lead in fighting federal overreach. A similar measure was only narrowly defeated — by 8,000 votes out of over 1.8 million cast — in 2008. Given the extreme likelihood that the 2010 electorate as a whole will be in a more anti-Obama mood than the one that swept him into office in 2008, there is reason for optimism that the measure will pass.
So what happens if Arizona, or any other state, passes such an amendment? Unfortunately, that is unlikely to be the end of it. ObamaCare supporters will quickly challenge the amendment in court, lest other states be tempted to follow suit and protect their citizens and healthcare markets from federal control.
The Constitution is fairly clear on this question. The federal government has a limited set of enumerated powers, while everything else is reserved to the states and the people. None of these powers includes the ability to force people to purchase health insurance, or anything else for that matter. Sadly, modern Constitutional jurisprudence is far removed from the document it is purportedly based on. By consistently misinterpreting the commerce and general welfare clauses, the courts have allowed significant extra-constitutional growth of the federal government over the course of the nation’s history.
Despite this state of affairs, there is some hope that even a court system based on the flawed constitutional understanding of modern jurisprudence will balk at the audacity of ObamaCare. A recent report by the Congressional Research Service acknowledged that, “it is a novel issue whether Congress may use [the commerce] clause to require an individual to purchase a good or service.” And when this same issue arose in 1993 during the HillaryCare battle, the Congressional Budget Office found the mandate to be “unprecedented,” noting that, “the government has never required people to buy any good or service as a condition of lawful residence in the United States.” Still, lacking any Supreme Court precedent, a potential legal battle could go either way.
There can only be a legal battle, however, if the states and the people first reassert their sovereignty.
In order to insure that happens, activists should fight not just in Washington D.C., but also in the legislatures of their home states. Don’t just call Nancy Pelosi — who doesn’t care — or some moderate Senator who can be bought off by a few hundred million dollars in pork, but also call your state representative and tell him or her that you want an amendment to protect the rights of citizens to decide what, if any, insurance they want to purchase.
Many lawmakers across the U.S. are already sticking out their necks by standing up against a federal takeover of the healthcare industry. Legislators from 15 states held a press conference on Dec. 4th to unveil a letter, signed by over 100 lawmakers from 45 states, opposing ObamaCare. We must now put pressure on their colleagues to join them. If elected officials in Washington D.C. cannot be counted on to fulfill their duty to pass only those laws within their constitutional authority, then we have no choice but to look elsewhere to recapture our rights.
COMMENTS
Please let us know if you're having issues with commenting.