Sunday, March 21, 2010
Standard Article by Brett Narloch
Issue: Federalism
On December 9, 2009, Rasmussen Reports released a public opinion poll that reflected North Dakotans' views on the major health care reform proposal coming out of Washington, DC. At that time, only 30% of North Dakotans favored the proposed plan, while 64% were opposed. Furthermore, Senator Byron Dorgan's retirement announcement may have had to do with his unpopular support of the health care reform proposal. Earl Pomeroy's electoral trouble may also have to do with his vote for the health care plan. Clearly, Obamacare is not popular in North Dakota.
| Watch State Rep. Dan Ruby talk about the amendment. |
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Health Care Town Hall - Bismarck, ND from North Dakota Policy Council on Vimeo. |
| Rep. Ruby starts at the 31:35 mark. |
Michael Cannon, director of the health policy studies at the Cato Institute, has listed which ideas floating through the halls of Congress he considers to the best and which ones he considers to be the worst. Here is his list of worst ideas:
Expanding Government Programs: The entitlement programs we have are bankrupting the government, crowding out private insurance, increasing costs, and reducing quality. Medicare is the main reason medical practice is dangerously uncoordinated, and why medical errors kill as many as 100,000 Americans each year.
Mandating Insurance Coverage: Forcing Americans to purchase coverage would effectively turn private markets into a government program. In addition to being unconstitutional, an individual mandate would reduce health insurance choices by outlawing economical health plans, just as the Massachusetts mandate has done.
Price controls: Obama advisor Larry Summers says, "Price and exchange controls inevitably create harmful economic distortions. Both the distortions and the economic damage get worse with time."
Democrats nevertheless want to use price controls to cover people with pre-existing conditions, which would perversely lead insurers to avoid and mistreat those patients. Obama advisor David Cutler finds they also reduce choice by eliminating comprehensive insurance plans. The reforms above would do a better job of reducing the problem of pre-existing conditions.
Democrats also want to use price controls to curb Medicare spending. That's merely a veiled form of government rationing.
Federal Med Mal Reform: Republicans want federal law to limit medical malpractice lawsuits. But the Constitution does not give Congress the power to do so.
Setting those rules is a state responsibility. Many states have enacted reforms, and other states are learning from those experiments. A one-size-fits-all federal law could harm patients, preventing them from filing legitimate claims.
If health care reform were simple, we would have done it already. Yet both Democrats and Republicans are making it unnecessarily difficult by pushing reforms that reduce choice and competition. That's not what the doctor ordered.
The list is not detailed but briefly touches on the main problems with Obama's proposals. The phrases that Cannon uses to describe the bad ideas are interesting: "crowding out private insurance, increasing costs, and reducing quality," " forcing Americans to purchase coverage," "unconstitutional," and "price controls."
North Dakotans understand how bad a Washington takeover of health care would be. And they should pass a state constitutional amendment defending North Dakota's sovereignty.
During the 2009 Legislative Session, Rep. Jim Kasper was the prime sponsor of House Concurrent Resolution 3010 which was a constitutional amendment that, "would prohibit laws that restrict an individual's choice of private health care systems or private plans; interfere with a person's right to pay for lawful medical services; or impose a penalty or fine for choosing to obtain or decline health care coverage or for participation in any health care system or plan."
Unfortunately, the resolution did not pass.
According to the Tenth Amendment Center, 20 states have introduced similar resolutions, with two states - Arizona and Virginia - passing them into law. The amendment attempts to protect individuals against health care reform proposals. There are numerous reasons why state legislators are introducing the resolutions. The Tenth Amendment Center sums them up nicely,
A reading of the Constitution through the original understanding of the Founders and Ratifiers makes it quite clear that any national health care plan, or national public option, is not something that was delegated by the People to the Federal Government in the Constitution.
However, the courts, politicians and many commentators have interpreted (and re-interpreted) the Commerce Clause, the general Welfare Clause and Necessary and Proper Clause in ways not intended by the Founders so as to justify such programs under the Constitution. They are most certainly wrong. A number of states are considering legislation to effectively nullify any future national health care plan. If one uses a strict interpretation of the Constitution, then it is obvious that most health care reform proposals in Washington DC are unconstitutional.
The Tenth Amendment to the US Constitution states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Nowhere in the US Constitution does it say that Congress can control prices, require individuals to purchase health insurance, or make any medical decisions about anyone.
North Dakota legislators have shown support for putting the federal government on watch. The North Dakota legislature passed a resolution in 2009 supporting the Tenth Amendment. House Concurrent Resolution 3063 states that the powers of the federal government are limited, many laws are directly in violation of the Tenth Amendment, and that pending legislation may further violate the Constitution. The resolution "serves as notice and demand to the federal government to cease and desist, effective immediately, mandates that are beyond the scope of constitutionally delegated powers."
According to the Tenth Amendment Center, similar resolutions have been introduced in 40 states over the past two years. The movement to reaffirm the Tenth Amendment is gaining steam.
The American Legislative Exchange Council (ALEC) - an organization with 2,000 state legislators as members - has been the main driver behind the movement to get states to amend their constitutions to protect individual rights against federal health care reform by promoting model legislation called the Freedom of Choice in Health Care Act. According to ALEC,
ALEC's Freedom of Choice in Health Care Act would block legislation that imposes costly, bureaucratic penalties for choosing to obtain or decline health coverage. This provision strikes at the heart of an individual mandate—implemented in Massachusetts and elsewhere—that penalize individuals and businesses for failing to purchase health insurance.
The Massachusetts example is particularly instructive for states facing an individual mandate. Three years into the mandate, Massachusetts still hasn't achieved 100% coverage—in fact, the Bay State still has more than 200,000 uninsured residents. Many of the uninsured were exempt from the mandate because coverage was too expensive. Over half of those who did get insurance got fully- or partially-subsidized coverage, courtesy of Massachusetts taxpayers.
What's worse, health spending has increased by 42 percent in Massachusetts since the mandate was enacted; taxpayers, doctors, and hospitals are facing increased taxes and fees; and patients are finding it hard to see a doctor.
The question is will a state constitutional amendment trump federal law? Clint Bolick, Litigation Director for the Goldwater Institute - a free-market think tank in Arizona, believes that state constitutions can build upon the federal constitution to protect individuals. According to Bolick,
In any clash between state and federal provisions, at least four federal constitutional provisions are relevant. The Supremacy Clause establishes the Constitution as the supreme law of the land and provides that federal laws prevail over conflicting state laws where Congress has the legitimate authority to enact the legislation and where it does not impermissibly tread upon state sovereignty. The federal government will have to demonstrate that its legislation legitimately is derived from congressional authority to regulate interstate commerce. It will also have to show the legislation does not violate the 10th Amendment, which reserves to the states all government power not expressly delegated to the national government; and the 11th Amendment, which protects states from being used as mere instrumentalities of the national government. This constitutional construct is known as federalism.
Even if the federal government asserts power over the states regarding the matter, Bolick believes that the amendment is still important.
If these rights are given additional protection under state constitutions, they will create an absolute barrier to future state legislation that violates those rights. Moreover, efforts to enact the Health Care Freedom Act send a powerful message to our nation’s capitol that people at the grassroots take these rights very seriously and intend to protect them.
Indeed, if the practical aspects of the amendment are realized, then individuals would be able to stay out of Obamacare, perhaps stopping it dead in its tracks. The federal government would not be able to force North Dakotans to buy health insurance and could not prohibit North Dakotans from paying cash for health care services.
The amendment is still useful even if the state lost a challenge. The North Dakota legislature would not be able to infringe on the rights asserted in the amendment in the future. And perhaps more importantly, the people of North Dakota would be sending another message to the federal government that enough is enough.
