Most States Oppose Federal Insurance Mandate

Even if Democrats can manage to agree on a health care bill, there's widespread rebellion from the states. More than 30 states are moving to block the federal government from imposing a central feature of the bill: the individual mandate requiring that everyone buy insurance. Legal scholars generally agree that the measure is constitutional. Still, Virginia's pre-emptive law is on the governor's desk.

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RENEE MONTAGNE, host:

Now, even as the president tries to revive the health care debate, there's been a movement in the states - some states - to block some of the proposed changes.

NPRs Audie Cornish reports.

AUDIE CORNISH: The methods vary, but the goal is the same to restrict or even prevent certain federal health care proposals from taking root.

Governor GARY HERBERT (Republican, Utah): I think Democrat, Republican, all of us are starting to feel like the federal government is starting to overreach and do more than whats the constitution ever envisioned them to do. And I think there is some push back because of that.

CORNISH: At the National Governors Association meeting this past weekend, Utah Governor, and Republican, Gary Herbert, said the state's been working on its own reforms. Some state lawmakers want Utah to be able to opt out of any federal health care laws.

Governor GARY HERBERT (Republican, Utah): A state should be taking a lead on this and many other issues. Our concern is that the federal government will preempt all the progress that we've already made.

CORNISH: In many states, the flashpoint is mandatory coverage, requiring people or employers to buy insurance.

West Virginia Governor and Democrat, Joe Manchin, says states need more flexibility than the federal proposals offer.

Governor JOE MANCHIN (Democrat, West Virginia): The bottom line is, I should not be mandated with a one-size-fits-all to take care of somebody who is having a hard time financially, but is very healthy. Most of our states don't cover everybody that qualifies 'cause it's too expensive. So, we've got to find a better way and a more economic way.

CORNISH: On Capitol Hill, the current proposals also require everyone buy insurance, and include some form of financial penalty for those who don't. The idea is to expand the number of healthy people paying premiums to keep plans affordable. But the anti-mandate movement has been brewing since 2006, when Massachusetts passed laws requiring people to buy insurance. Places like Arizona and Utah went on the defensive to prevent similar measures in their states. But states are on the wrong track if they think they can opt out of a federal health overhaul, says Timothy Stoltzfus Jost, a legal scholar at Washington and Lee University.

Professor TIMOTHY STOLTZFUS JOST (Legal Scholar, Washington and Lee University): If there's anything that's clear under our constitution, it is that federal law is supreme over state law. States cannot nullify federal law.

CORNISH: Stoltzfus Jost and other legal experts say there's plenty of case law to support Congress's constitutional powers to tax, spend and regulate interstate commerce, and he believes those laws will cover individual health mandates.

Prof. STOLTZFUS JOST: This is all about politics. It's not about law. Because I think the real agenda here is not to nullify federal law or not to set up an interstate commerce clause challenge, but rather simply to send one more message to Congress that there are some people out here who don't want you to adopt health care reform. So, I mean, that's what this is all about.

CORNISH: But critics say that, while Congress has the power to tax and spend, it can't make you buy. Clint Bolick is with the Goldwater Institute, a conservative think-tank. He helped write the ballot initiative before Arizona voters this November.

Mr. CLINT BOLICK (Goldwater Institute): Well, I am personally itching to litigate these issues, and I think they are very winning issues, especially with the current United States Supreme Court, which takes very seriously, the limits on federal government power; and takes equally seriously the autonomy of states to protect their citizens against excessive federal regulation.

CORNISH: But there's a long way to go before things get to that point. Of the 30-plus states where such legislation has been introduced, only Virginia has passed a bill. Meanwhile, the federal health care bills are stalled - at least for now - and it's unclear which, if any, provisions will survive.

Audie Cornish, NPR News.

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