Health care and the states

Sound and fury

Virginia bans mandatory health insurance. Does it matter?

IF AMERICAN constitutional law is a centuries-old struggle between Alexander Hamilton and Thomas Jefferson—between expansive and narrow views of federal power—Virginia’s general assembly struck a blow for Jefferson, its native son, on March 10th, when it became the first state legislature to ban mandatory health insurance, such as Barack Obama’s health plan insists everyone must have. The legislation, which states that Virginians can neither be required to have health insurance nor be penalised for not having it, passed both chambers of Virginia’s legislature with significant Democratic support—21 of the House’s 39 Democrats voted for it.

Idaho followed suit a week later. Arizona’s voters will decide whether to write such protections into the state’s constitution later this year. According to the American Legislative Exchange Council, a small-government advocacy group that drafted model anti-mandate legislation, similar measures are in the works in no fewer than 35 other states.

To supporters of Barack Obama’s health-care plan, these bills are nothing more than theatre. The constitution’s supremacy clause is clear: federal law trumps state law, and should congressional Democrats suddenly find their spines and pass the bill, a state could no more ban it than it could enact segregation or declare their citizens exempt from federal income tax.

But it is not just at the state level that Mr Obama’s plan faces opposition. Many opponents believe it breaches the constitution itself. They offer three main arguments. First is a broad challenge on states’ rights grounds, particularly with respect to health care. In Gonzales v Oregon, which concerned that state’s assisted-suicide law, the government argued that doctors who prescribe lethal doses of medication violate federal law. The Supreme Court rejected that, believing it would constitute “a radical shift of authority from states to the federal government to define general standards of medical practice in every locality.” Second, the Supreme Court has recognised a right to medical self-determination, notably finding it within the Fifth Amendment’s due-process clause. An individual mandate could violate that right by restricting choices of doctors or procedures.

The last and strongest argument concerns the government’s power to require the purchase of health insurance under the commerce clause. The non-partisan Congressional Research Service found this the most challenging constitutional question related to health-care reform, as the commerce clause, the clause in the constitution that allows the federal government to regulate trade between the states, has never before been used to require that citizens buy a good or service.

If the Supreme Court finds in favour of any one of these three arguments, the state laws become irrelevant; the individual mandate will have been invalidated at the federal level. If the constitutional challenges are unsuccessful, then the mandate becomes, by virtue of the supremacy clause, “the supreme Law of the Land and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Yet even if Virginia’s new law, and those of any states that follow its example, get struck down, they remain messages of anxiety and discontent with the sprawl and reach of Mr Obama’s health-care plan.