Health care haymaker

Sunday, April 4, 2010 at 11:45pm

The Tennessee legislature is joining a growing nationwide outcry against Congress’ health care overhaul by enacting measures purporting to nullify the law’s mandate that all Americans buy insurance.

The Senate has voted 26-1 for the so-called Health Freedom Act, and the same bill is advancing toward passage in the House.

Virginia Gov. Bob McDonnell signed that state’s version into law two weeks ago. Idaho’s legislature has passed one too, and similar proposals are pending in more than 30 other states.

Legal experts are virtually unanimous in saying the statehouse measures are unconstitutional because federal laws supersede those of the states. The issue of state nullification of national law was settled in the federal government’s favor 30 years before the Civil War. That makes today’s movement largely symbolic, the most prominent sign of public anger over the expansion of federal programs under President Obama.

“There’s a realization by average people … the people realize that our federal government is absolutely out of control,” Lt. Gov. Ron Ramsey said. “It’s borrowing too much, it’s spending too much and it’s pushing down on us here in the state of Tennessee.”

At Legislative Plaza, tea party activists have clogged the hallways twice over the past two weeks as lawmakers took up measures against health care reform.

“I ask you to give Democrat, Republican, independent individuals, freedom-loving Tennesseans a tool to try to fight this unprecedented move by the federal government,” Rep. Mike Bell, R-Riceville, told a House subcommittee.

Last week, the subcommittee responded by passing the Health Freedom Act on voice votes as the tea partiers cheered. Also adopted were two proposed state constitutional amendments — one to ban the federal government from ever requiring that anyone buy insurance and the other to mandate the free enterprise system forever in Tennessee.

“I believe there’s a difference in health care reform and telling citizens exactly what they’re going to buy and when they’re going to buy it and Big Brother by far overstepping his bounds. This is simply steps to protect the citizens of Tennessee,” said Rep. Eric Swafford, R-Pikeville.

Only Democratic Reps. Jimmy Naifeh of Covington and Joanne Favors of Chattanooga raised any objections. As Favors spoke, tea partiers booed and jeered. “You lie!” one yelled.

During the meeting, the subcommittee’s chairman, Charles Curtiss, admonished protesters twice to stay quiet and threatened to eject them from the hearing room.

“I cannot understand how any legislator could come here … and not be supportive of citizens having access to health care,” Favors said. “If it has to be that it is a requirement, then so be it. That should not be something to get people all riled up about. Nobody is going to lose their rights.”

Republican candidates for governor — particularly Ramsey and U.S. Rep. Zach Wamp — are trying to capitalize on the conservative outrage by filling their stump speeches with anti-Obama rhetoric. Ramsey is demanding that Tennessee join a chancy lawsuit challenging the constitutionality of the health care law. In Wamp’s signature zinger, he vows to meet Obama at the state line if the president comes to Tennessee to do us wrong.

“Part of the reason I’m running for governor is because states are going to need to declare their sovereignty, stick together with other governors to protect freedom in our states and be willing to meet the federal government at the state line, whether it’s environmental regulations, the speed limit, gun laws, whatever the federal government’s doing that’s onerous,” the Chattanooga congressman says.

States “need to stand up … and say, ‘No — we’re going to meet you at the state line and negotiate with you, but you’re not going to run all over us anymore.’ We need tough strong governors who will stand up against the federal government.”

The hot rhetoric might work in a GOP primary, but even some Republicans worry about a backlash in the general election when more moderate voters go to the polls.

Tennessee Democrats have been slow to defend health care reform, although their caucus chairman in the House, Nashville’s Mike Turner, did cause a stir this month by suggesting that some of the president’s critics are motivated by racism.

Asked about the Republican attempts to nullify the law, Turner said: “I have one thing to say about that: Appomattox,” referring to the Virginia town where Robert E. Lee surrendered to Ulysses Grant.

“We’ve got a lot of bills on states’ rights here, state sovereignty and all that,” he added. “We went through that fight once before. All of a sudden, we have a black man elected president and everybody wants to start acting like something’s wrong with our country. I didn’t agree with a lot of things George Bush did, but I wasn’t ready to secede from the union.”

Asked to elaborate afterward, Turner said, “I think some of the people who are against Obama are just against Obama because he’s African-American.”

Mike McWherter, the Democrats’ only remaining gubernatorial candidate after Kim McMillan’s withdrawal last week, spoke out at a recent campaign forum, foreshadowing a defining fight with the GOP nominee in November’s election.

“Access to affordable, adequate health care is something that every Tennessean ought to have. And this should not be an issue that we politically grandstand about,” McWherter said.

17 Comments on this post:

By: Dragon on 4/5/10 at 6:56

FTA - "Legal experts are virtually unanimous in saying the statehouse measures are unconstitutional because federal laws supersede those of the states."

But, federal laws do NOT supersede the Constitution.

By: not_guilty on 4/5/10 at 11:32

Just think. If this health care plan is valid under the Commerce Clause, whats next? Congress might even use its power to regulate interstate commerce to require that motel operators rent rooms to Negro occupants.

Isn't it odd that we didn't hear this kind of blathering about "states' rights" when President Clinton proposed national health insurance, nor even earlier when Senator Kennedy was its most prominent advocate? Those of us who are old enough to remember seeing "whites only" signs and who know, without using Google, who Lester Maddox was, realize what an ugly shibboleth the "states' rights" advocates are espousing.

By: free thinker on 4/5/10 at 11:48

Many individuals keep harping about the Constitution when it pertains to health care. So here is what gives the United States Congress its power to do so, straight from the Constituion of the United States of America:

Article I, Section 8, Clause 18 of the U.S. Constitution
"[The Congress shall have Power] . . . [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Other various articles( Article 12 , as well) also permit the recent actions taken by Congress.

By: Not So Fast on 4/5/10 at 12:16

re: free thinker

Let us start with the fact that there are only 7 Articles in the U.S. Constitution. With that said, I'm not sure from which "Constitution" you are pulling "Article 12."

Next, you may need a quick brush-up on the definition of "foregoing." The clause cited above, taken from Article I, Section 8, addresses the "foregoing powers"--as in, the powers immediately described above or before--such as those allowing for Post Offices, Post Roads, National Defense measures, etc. Nowhere in that list of Powers does it address the federal government's ability to mandate the purchase of private health insurance.

The second part of that clause states "and all other Powers vested by this Constitution." For the record, nowhere else in its SEVEN articles does the U.S. Constitution enumerate power to the federal government to mandate its citizens purchase private health insurance.

AND, to "not guilty." The practice of nullification began in New England long before the Civil War. While it is largely associated with Southern states today, it was also also applied by states to remove the responsibility of enforcing the Fugitive-Slave Act. Would these people--obviously proponents and advocates of States' rights--be included in this "ugly shibboleth?"

By: Not So Fast on 4/5/10 at 12:22

Also, for those who find the U.S. Constitution unclear:

Amendment 10 - Powers of the States and People. Ratified 12/15/1791.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

By: RealityRosie on 4/5/10 at 12:26

Rep. Bell has insulted me by implying that good Americans will dislike Health Care Reform.

Mr. Ramsey proclaims that "states are going to need to declare their sovereignty." The USA is sovereign. Andrew Jackson and then the Civil War should have put the nullification concept to a deep, dark place. I can't believe people who object to health care reform.

Moving here from Mississippi WAS a bit of healthcare reform for me. I was able to afford preventative healthcare. I had cancer. Had I stayed in Mississippi on the state's plan there, I would have neglected to get exams there until it was too late. It was just almost too late.


By: Not So Fast on 4/5/10 at 12:45

There is a major difference between wishing good things for others and mandating such things. And this bill is hardly any measure of "reform" as it pertains to the current system.

Forcing healthy, young adults to purchase unnecessary private health insurance in order to compensate for rising costs throughout the industry is no "reform" and certainly no solution to rising costs. This attempt at "reform" is a massive failure for all Americans and will do absolutely NOTHING to keep rising costs of care at bay.

You are correct in your assertion that the "healthcare" industry is in need of a major facelift. You are wrong in your assumption that more federal central planning is the way to get there. Every action or "solution" previously implemented by the federal government throughout the 20th Century has created the mess within which we currently operate.

Why is it that the advancement of technology has allowed for all medical procedures not commonly covered by so-called "insurance" plans (a misnomer, to be sure) seen consistent decreases in costs to patients (e.g. Lasik surgery) since their introduction to the marketplace?

Americans desperately need LESS insurance and LESS coverage for everyday healthcare procedures. Not more.

By: Dragon on 4/5/10 at 1:07

By: not_guilty on 4/5/10 at 12:32
"Just think. If this health care plan is valid under the Commerce Clause, whats next? "

Let's see. Housing crisis, pass a law requiring people to buy houses. Automotive Industry crisis, pass a law requiring people to buy cars. Jobs crisis, pass a law requiring (rich) people to hire maids, butlers, and gardeners.

All of the above would be valid under the justification contained in the ‘‘Patient Protection and Affordable Care Act’’.

By: not_guilty on 4/5/10 at 1:17

The wisdom of the health insurance reform plan enacted by Congress is fairly debatable. Whether the Constitution authorizes Congress to act in this manner is less so.

The so-called "individual mandate" is actually a tax on those individuals who decline to purchase health insurance. To quote from Professor Jack Balkin of the law school at Yale University, writing in the New England Journal of Medicine:

The individual mandate is a tax. Does it serve the general welfare? The constitutional test is whether Congress could reasonably conclude that its taxing and spending programs promote the general welfare of the country. This test is easily satisfied. The new health care reform bill insures more people and prevents them from being denied insurance coverage because of preexisting conditions. Successful reform requires that uninsured persons — most of whom are younger and healthier than average — join the national risk pool; this will help to lower the costs of health insurance premiums nationally.

Taxing uninsured people helps to pay for the costs of the new regulations. The tax gives uninsured people a choice. If they stay out of the risk pool, they effectively raise other people’s insurance costs, and Congress taxes them to recoup some of the costs. If they join the risk pool, they do not have to pay the tax. A good analogy would be a tax on polluters who fail to install pollution-control equipment: they can pay the tax or install the equipment. [footnote omitted]

Moreover, Congress has the power to regulate interstate commerce. An individual's decision to purchase, or to decline to purchase health insurance affects commerce in the aggregate. Again, quoting Professor Balkin in the same article:

The individual mandate taxes people who do not buy health insurance. Critics charge that these people are not engaged in any activity that Congress might regulate; they are simply doing nothing. This is not the case. Such people actually self-insure through various means. When uninsured people get sick, they rely on their families for financial support, go to emergency rooms (often passing costs on to others), or purchase over-the-counter remedies. They substitute these activities for paying premiums to health insurance companies. All these activities are economic, and they have a cumulative effect on interstate commerce. Moreover, like people who substitute homegrown marijuana or wheat for purchased crops, the cumulative effect of uninsured people’s behavior undermines Congress’s regulation — in this case, its regulation of health insurance markets. Because Congress believes that national health care reform won’t succeed unless these people are brought into national risk pools, it can regulate their activities in order to make its general regulation of health insurance effective.

Makes sense to me. I suspect that those who suddenly blather about "states' rights" are operating in service of a less high minded, more ignoble agenda. Rep. Mike Turner was spot on. Those who want to "take this country back" because they simply can't stand having a darkie as president should grow a pair and say so.

By: Dragon on 4/5/10 at 1:24

Except so very wrong. The mandate is NOT a tax. Please read for yourself. Section 5000a very clearly imposes a mandate to buy insurance, not to remit a tax to the government. It then specifies the penalty if you are not compliant. No where does it say this penalty is a tax. In fact, it clearly states that you must remit your penalty along with your tax.

Secondly, Congress has the power to REGULATE interstate commerce. No where are they given power to COMPEL the individual to engage in commerce. If that were so, we would have been ordered to buy GM or Chrysler cars.

By: Dragon on 4/5/10 at 1:38

Clarification: Section 5000a refers to the IRS code being modified. Start your reading of HR3590 on page 317 (Section 1501). The actual requirements begin on page 321.

By: not_guilty on 4/5/10 at 1:45

Dragon, more than forty years ago, the Congress, operating pursuant to its power to regulate interstate commerce, preempted state Jim Crow laws regarding public accommodations. This compelled innkeepers and restaurant operators to engage in commerce with Negro customers (the preferred term at that time). The U. S. Supreme Court in Heart of Atlanta Motel, Inc. v. United States upheld this as a valid exercise of Congressional power under the Commerce Clause.

Any further questions?

By: Dragon on 4/5/10 at 1:52

The case you cite is preventing the discrimination of service. It did not compel anyone to rent a room or purchase a meal.

The Obamacare does the same. It prevents "discrimination of service" based on pre-existing condition. But it goes further by compelling citizens to purchase the service.

Next objection?

By: not_guilty on 4/5/10 at 2:03

The innkeeper was required to rent (sell) a room, and the restaurant operator was compelled to sell a meal, under conditions where he would not voluntarily have done so. Seems compulsory to me.

But in any event, the relevant question is whether the antecedent activity is commerce. A refusal to engage in a particular transaction affects commerce in the aggregate. The New England Journal of Medicine article by Professor Balkin which I cited above explains this more cogently than I can.

By: Dragon on 4/5/10 at 2:10

No argument that the innkeeper or restaurant owner is engaging in commercial activity. The same applies to government regulation of the insurance providers.

What you (and Professor Balkin) fail to prove is that the government has the power to order anyone to be a customer against their wishes. If the Supreme Court had said that all negros must become customers (must rent rooms or must purchase meals in a diner), then precidence would exist. Obamacare orders all Americans to buy insurance, whether or not they need it or want it.

By: not_guilty on 4/5/10 at 2:29

As I understand the bill, (and my understanding is admittedly imperfect,) the "mandate" is essentially a free-rider tax on those who decide to "self-insure". When an uninsured (or, as Professor Balkin explains, self-insured) person receives care in the emergency room for which he cannot pay, the cost is shifted to other patients, many of whom are insured. This cost of unpaid care affects interstate commerce--hospitals are huge consumers of goods that travel interstate, and insurance companies whose premiums are affected by the cost-shifting are significant investors in commercial entities.

By: Dragon on 4/5/10 at 2:40

I agree with the premise. If you read the where-as and why-for section, cost shifting is one of the arguments. However, that does not give congress carte blanche to force everyone to buy insurance.

If I were Bill Gates, why would I want to give an insurance company money? I could afford to pay for my own medical costs, whether everyday or catastrophic. Forcing me to buy something I do not want or need is outside constitutional powers. They are counting on my payment of premiums without using the benefits to cover for others.

That said, if they had been smart (hah hah), they would have first required all Americans to pay a new tax. This tax could then have been reimbursed or waivered based on insurance coverage. The effect would have been the same.