Health Care Freedom Amendment - Guarding Missourians Against Congressional Overreach

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The Health Care Freedom Amendment: Guarding Missouri Against Congressional Overreach Testimony Presented Before the Missouri Senate General Laws Committee on February 14, 2012 by Dave Roland Chairman Cunningham, Vice-Chairman Nieves, and members of the committee, I thank you for the opportunity to offer this testimony. My name is Dave Roland and I am the Director of Litigation and co-founder of the Freedom Center of Missouri, a non-profit, non-partisan law firm dedicated to research, litigation, and education in defense of state and federal constitutional principles. I have spent my entire career focusing on constitutional law while working with groups such as the Freedom Forum’s First Amendment Center, the Becket Fund for Religious Liberty, the Institute for Justice, and, just prior to founding the Freedom Center, with the ShowMe Institute. This testimony is being offered for informational purposes so that legislators may have a better understanding of the broader context regarding the federal Affordable Care Act and the General Assembly’s ability to guard Missouri citizens against Congressional action that oversteps its constitutional limits.

Congress Has Exceeded Its Authority As we all remember from high school, Congressional authority is limited to those powers expressly granted by the U.S. Constitution. But in the Affordable Care Act, Congress has

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asserted the authority to force almost every American citizen to purchase health insurance – a product that some may neither want nor need – and to enforce penalties against those who refuse to comply with Congress’s command. The Federal government has argued several different theories as to why Congress should be permitted to impose this requirement, and in just a few months the U.S. Supreme Court will offer its perspective on the merits of those claims. The implications of the Federal government’s arguments are difficult to overstate, because if we, as the citizens of the states, concede that the Constitution gives Congress the power to force individual citizens to engage in unwanted commerce, there is no longer any principled limit on the extent to which Congress may interfere with our day-to-day lives.

Missouri’s Citizens Should Be Permitted To Protect Their Freedom The General Assembly, however, need not sit passively by, waiting to see how the Supreme Court chooses to interpret Congress’s authority under the Constitution, nor will the General Assembly’s hands be tied if the Supreme Court removes the limits on Congress’s power. To the contrary, a state legislature may be able to provide its citizens with a legal avenue to protect themselves from this sort of unlimited Congressional power. The U.S. Constitution’s Bill of Rights does not represent the outer boundaries of citizens’ individual liberties; it merely establishes a baseline of freedom that cannot be violated by any level of government. Each state has its own constitution, and those documents can — and frequently do — provide an even higher level of protection for liberty than is afforded by the U.S. Constitution. Generally speaking, these additional protections are only applied against the actions of state and local governments, but if Congress tried to enforce a law that directly violated the terms of SJR 39 (or some other fundamental liberty protected under a state constitution), the courts would have to

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decide whether a state’s guarantee of liberty to its citizens can protect them from Federal laws or enforcement actions that would violate that liberty. This is currently an open question. As some legal scholars have pointed out, federal courts have occasionally noted that the application of a federal statute could result in a violation of certain freedoms secured under state constitutions. In several of these cases, the courts required the government to come up with a sort of alternative structure that would respect the state constitutions, although the courts tended to do this where Congress had given an indication that they wanted to avoid violating state constitutional freedoms. In the case of the Affordable Care Act’s individual health insurance mandate, it is clear that Congress was not at all concerned with respecting state constitutional protections. This would set up a battle under the U.S. Constitution’s Supremacy Clause, which reads as follows: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be 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.” U.S. Const. Art. VI, cl. 2. Of course, the central question is just how courts would apply this language — and the answer may not be as simple as it seems. Despite the text’s indication that state laws and constitutions are subject to federal laws and treaties, a look into history shows that several important Founders rejected the idea that Congress could always enforce laws deemed unconstitutional by the states.1 When in 1798 Congress passed the Alien and Sedition Laws, which made it a criminal offense to criticize certain government officials publicly, James 1

It is worth noting that the Ninth and Tenth Amendments were passed after the Supremacy Clause and, therefore, arguably should be understood to have clarified that the Supremacy Clause does not prevent the people from asserting even rights that are not enumerated in the Constitution or the states from asserting powers that do not properly belong to the Federal government.

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Madison — widely known as the Father of the Constitution — and Thomas Jefferson — author of the Declaration of Independence and the sitting vice president — drafted the Kentucky and Virginia Resolutions, in which those states rejected the constitutionality of the acts.2 The U.S. Supreme Court was not called upon to resolve the question of whether states could legitimately deny congressional authority in this way, but up until the Civil War, different states repeatedly adopted similar measures.3 Without any directly applicable judicial precedent, some legal scholars have attempted to guess at how the justices might be inclined to resolve such a conflict between state constitutional liberties and federal laws. One of my colleagues, Clint Bolick, a cofounder of the Institute for Justice and the current leader of a constitutional litigation center at the Goldwater Institute in Arizona, has noted a recent judicial trend in which the Supreme Court has shied away from allowing federal laws to trump state constitutional requirements. This might well signal that the justices are, in fact, inclined to protect freedoms enshrined in state constitutions — but the only way we will be sure is if the U.S. Supreme Court is presented with a direct conflict. If the people of Missouri adopt either SJR 39 or HRJ 72, the resulting state constitutional provision could provide just such a conflict. The Ninth Amendment makes clear that American citizens’ rights do not begin and end with those specifically enumerated in the Constitution; the people can retain for themselves other rights that can be enforced against the Federal government.4 As of yet, courts have not determined what these rights might be or how they would be recognized, but I argue that one 2

Madison later said that, in his opinion, these resolutions were primarily useful as tools through which the power of Congress could be called into question — though not necessarily nullified. He believed that similar resolutions would signal to other states the potential necessity of modifying the current system of government to eliminate further abuses. 3 Indeed, South Carolina’s attempted nullification of a tariff passed by Congress in 1832 nearly sparked secession and armed conflict. 4 The Ninth Amendment states that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

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way Americans can identify and protect such unenumerated rights is to set them out in their state constitutions. This, essentially, is the function of SJR 39, which is before this committee today, and of HJR 72, which has not yet been assigned for a committee hearing.

Comparing SJR 39 and HJR 72 I will next try to and explain the differences between SJR 39 and HJR 72, as seen through the eyes of a constitutional litigator who intends to use them on behalf of Missouri citizens. To have any hope of succeeding in a constitutional claim that relies upon the Ninth Amendment as a vehicle to assert fundamental rights recognized by a state constitution, I believe the state constitutional provision will need to assert a specific individual liberty that the people are choosing to reserve to themselves, will need to show that this liberty is rooted in a universal principle that should apply to all levels of government, and will need to set reasonably clear limits on government action that might impact upon the protected right. The language of SJR 39 is virtually identical to Prop C, which 71% of Missouri voters approved in 2010; it is also very similar to other Health Care Freedom Acts that have been enacted by sixteen of our sister states.5 The proposed amendment would establish that “a law or rule shall not compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system.” SJR 39 goes on to state that persons or employers “may pay directly for lawful health care services” and neither they nor any “health care provider” can be penalized for such direct payment, and that “private health care systems shall not be prohibited.” SJR 39 then carefully defines its terms and clarifies certain limits on its scope. 5

Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Montana, New Hampshire, North Dakota, South Carolina, Tennessee, Texas, Utah, and Virginia have all passed state laws built on the model of the Health Care Freedom Act. Arizona, Ohio, and Oklahoma have also passed constitutional amendments very much like SJR 39; voters in Alabama, Florida, and Wyoming will vote on similar constitutional amendments at their elections in November 2012.

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From a litigator’s perspective, there are advantages and disadvantages to be found in this language. It will not be lost on judges that a large group of states have chosen to “present a unified front” by enacting precisely the same statutory and/or constitutional language, and this strategic approach would also mean that legal victories in one jurisdiction are more likely to provide useful precedent in other jurisdictions as well – but this is also a double-edged sword in that a loss in one jurisdiction may prove persuasive elsewhere. There are some weaknesses with SJR 39’s style and language as well. While this provision would become part of the Missouri Bill of Rights, the form of SJR 39 more closely resembles a statute and it does not specifically or directly establish a clear, fundamental right that the people are trying to exercise their Ninth Amendment right to protect.6 This concern is compounded by the express limitations on the scope of the provision, which detract somewhat from the idea that the people are attempting to establish a universal principle and may dissuade a court from taking the asserted constitutional right seriously. Most concerning, however, is the fact that SJR 39 states that it will not apply to “laws or regulations in effect as of January 1, 2012.” While the individual insurance mandate provided for in the Affordable Care Act will not technically be binding on citizens until 2014, the Affordable Care Act itself went into effect when President Obama signed the bill into law on March 23, 2010; a court might use this as a basis for refusing to enforce SJR 39 against the Affordable Care Act. HJR 72 attempts to accomplish the same goal as SJR 39, but takes a slightly different – and perhaps more effective - path to get there. It begins by emphasizing that every citizen has the inherent liberty to make autonomous decisions regarding lawful health care services or products and to reach a private agreement with the providers of those services or products 6

Think of it in this way — how would one phrase the right(s) SJR 39 is attempting to protect? The right to choose not to participate in a health care system? The right to pay directly (and accept direct payment) for health care services?

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regarding how payment will take place.7 HJR 72 then specifically denies that any government official or agency has the lawful authority to infringe upon these rights, and it clarifies that the General Assembly is still permitted to create uniform regulations regarding dangerous healthcare services and the health insurance industry, and to create tax-funded public health care programs. From a litigator’s perspective, HJR 72 may not look just like other states’ Health Care Freedom Amendments, but it does look much more like what judges might expect to see in a Bill of Rights. It identifies a reasonably specific individual liberty that the people intend to reserve to themselves, suggests that this liberty is a deeply-rooted, universal principle that deserves protection from all levels of government, and clearly states what the government can and cannot do in relation to citizens’ exercise of this liberty. I believe that these points may make HJR 72 an easier tool to use in asserting a Ninth Amendment claim against the Federal government’s enforcement of the Affordable Care Act. Conclusion I wish to make clear that I am not advocating the passage or defeat of either of these bills, but rather am offering an assessment of the relative usefulness of these bills for the purposes of constitutional litigation. If the General Assembly sees fit to place either of these provisions on the ballot and if Missouri voters do eventually add one of them to the state constitution, the Freedom Center of Missouri will do its utmost to see that the new provision is vigorously enforced.

Thank you very much for your time and consideration.


I would phrase this as “the right to make your own choices about whether to obtain lawful health care services and to reach a private agreement about how you will pay for those services.”

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