Wednesday, February 23, 2011
by Brett Narloch
The following is a press release the NDPC sent out on February 15, 2011.
Stenehjem's opinion does not cover Health Care Freedom Act, says Constitutional Attorney
Bismarck - Today, the North Dakota Policy Council released a response to Attorney General Wayne Stenehjem's February 3, 2011 opinion about health care freedom laws being in violation of the U.S. Constitution (Letter Opinion 2011-L-01). The response was written by Clint Bolick, Litigation Director of the Goldwater Institute in Phoenix, Arizona.
While the Attorney General's opinion did not mention the Health Care Freedom Act, a proposed state constitutional amendment that would protect North Dakotans from individual health insurance mandates, he did generalize about the theory behind such a proposal.
"Wayne Stenehjem concluded that House Bill 1286, which is much broader than the Health Care Freedom Act, would preempt federal law and thus violate the Supremacy Clause of the U.S. Constitution," wrote Bolick. "The Attorney General's conclusion is not applicable to the Health Care Freedom Act... in sum, the Health Care Freedom Act lies within North Dakota's authority to enact."
The Health Care Freedom Act, HCR3014, is a state constitutional measure that would, " prohibit any law from compelling any individual to purchase health insurance or compelling any individual, employer, or health care provider to participate in any health care system, would allow an individual or employer to pay directly for health care service, and would allow a health care provider to accept direct payment for health care services."
"I asked Mr. Bolick to prepare a written response to Mr. Stenehjem because we did not want the Attorney General's official opinion to confuse people. The opinion is written sufficiently vague to imply that it would cover the Health Care Freedom Act. Mr. Bolick showed that it does not," said North Dakota Policy Council Executive Director Brett Narloch.
Similar constitutional amendments have passed in Arizona and Oklahoma and have not been challenged.
According to Bolick, North Dakota may need a law or amendment similar to the Health Care Freedom Act to remain part of a lawsuit in a federal court.
"Attorney General Wayne Stenehjem notes that North Dakota is a party to the multi-state challenge to the individual mandate in the Florida case. It is noteworthy that both courts that have struck down the individual mandate have found that states have standing to represent the rights of their citizens to challenge the individual mandate because they have enacted the Health Care Freedom Act... It is possible that North Dakota will be found in a subsequent appeal to lack standing to prosecute its challenge to the individual mandate if it does not enact a Health Care Freedom Act," wrote Bolick.
Clint Bolick has argued and won cases in the Supreme Court, the Arizona Supreme Court, and state and federal courts from coast to coast. To read his entire bio, click HERE.
To read Bolick's entire response, click HERE.
The Health Care Freedom Act is an idea being promoted by the NDPC and is featured in Moving Forward, the group's policy guide.
To read more about the Health Care Freedom Act, click HERE.