March 09, 2010

Can States Say "No Thanks" to ObamaCare's Health Insurance Mandate?

Peter Suderman looks at the legality of state laws that would ban mandatory insurance. Virginia has already passed such a law and more than 30 other states are considering doing the same.
I asked a couple of legal and constitutional scholars what they thought, and the consensus seems to be that though state laws barring mandatory insurance shouldn't be unconstitutional, it's likely that if health reform were passed and they were challenged, the Supreme Court would rule that they are. However, we don't actually know for sure, and there is legal precedent for the Supreme Court to side with a state in a federal/state dispute.

All of them also noted that, regardless of whether or not these laws and amendments eventually stand up to challenge, they're strong political signals of opposition against the insurance mandate—which is arguably the centerpiece of the Democrats' federal health care overhaul (the other key regulations don't work without a mandate).

On the constitutional question, Roger Pilon of the Cato Institute says, "It isn't simply the Supremacy Clause that would make the state law unconstitutional, but rather the constitutionality of the federal statute together with the Supremacy Clause and the inconsistent state law." In other words, the Supremacy Clause alone wouldn't render Virginia's law unconstitutional. Instead, it would be struck down only if and when a federal individual mandate was passed and ruled constitutional.

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