Policy-ish

States Hedge Bets, Seek To Block Insurance Mandate

If Congress gets its act together and passes a bill requiring everybody to have health insurance, can states pass laws or amend their own constitutions to exempt the people in their states?

A map of the USA, in pastels. i i

hide captionTwo-thirds of these states have some sort of legislation or constitutional amendment in the works to exempt people in their jurisdictions from the proposed requirement to buy health insurance.

iStockphoto.com
A map of the USA, in pastels.

Two-thirds of these states have some sort of legislation or constitutional amendment in the works to exempt people in their jurisdictions from the proposed requirement to buy health insurance.

iStockphoto.com

A lot of them seem to be trying. At least two thirds have some sort of legislation or constitutional amendment to that effect in the works, according to the National Conference of State Legislatures.

Here's an excerpt from a Constitutional amendment sought by some in the Arizona legislature:

"To preserve the freedom of all residents of the state to provide for their own health care... A law or rule shall not compel, directly or indirectly, any person, employer or health care provider to participate in any health care system ... A person or employer may pay directly for lawful health care services and shall not be required to pay penalties or fines for paying directly for lawful health care services..."

But legal scholars say there's not much of a question here — states can't override a federal law. "These resistance efforts are not about law — they are about politics," writes Tim Jost of the Washington and Lee University School of Law in the New England Journal of Medicine this month.

"Indeed, one of the primary reasons for adopting our Constitution in place of the Articles of Confederation was to establish the supremacy of national over state law," Jost continues. "Our only civil war was fought over the question of whether national or state law was ultimately supreme."

And more recently, he notes, the Supreme Court made that clear in the battle over school desegregation. When Arkansas tried to amend its constitution to prohibit integration, it produced the 1958 opinion Cooper v. Aaron, which Jost called "the only Supreme Court opinion I know of that was signed individually by each of the Court's nine justices" in which the court "decisively reaffirmed the supremacy of federal law and rejected the state's claimed right to nullifcation."

But a bigger question is whether states are reading the public correctly. While they claim that the individual mandate is unpopular and infringes on liberty, a recent Washington Post-ABC News poll released earlier this week found that by 56-43 percent the public favored the idea of requiring everyone to have health insurance, as long as there were "tax credits or other aid to help people pay for it." The Democrats' bills facing Congress contain both tax credits and subsidies for those with lower incomes.

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