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Colorado Amendment 63 (health care choice) not a “PR stunt”

Is the Colorado Right to Health Care Choice Initiative a “public relations stunt,” as a political science professor says? No, it’s not.  Should a lawsuit against the mandatory insurance provision of HR 3590 succeed, the Feds will pressure states into enforcing it.  And regardless of the lawsuit, state-level legislation have influenced the enforcement and reform of federal legislation.

Of the Colorado Right to Health Care Choice Initiative,  Colorado College political science professor Bob Loevy says:

This is a nice public relations stunt but it’s not likely to have any more effect than that. … The U.S. Constitution contains a supremacy clause. The chance that you can use an initiated state law or constitutional amendment to reverse a law of Congress is highly unlikely.

Professor Loevy is right that a state level amendment is not likely to overturn a federal law, as I have noted in an earlier post about Missouri’s Proposition C.  But the Colorado Right to Health Care Choice Initiative is not about reversing federal legislation.  The text of the initiative is quite clear (emphasis added):

no statute, regulation, resolution, or policy adopted or enforced by the state of Colorado, its departments and agencies, independently or at the instance of the United States shall: (a) require any person directly or indirectly to participate in any public or private health insurance plan, health coverage plan, health benefit plan, or similar plan; or (b) deny, restrict, or penalize the right or ability of any person to make or receive direct payments for lawful health care services.

This June 30 podcast with Independence Institute Director of Operations Mike Krause and II President Jon Caldara elaborates on this point.  The Amendment is important should lawsuits against HR 3590’s mandatory insurance provision are successful.

Mike Krause says (again, emphasis added):

Let’s go back to the first part [of the Colorado Right to Health Care Choice Initiative] – the fact that the state of Colorado won’t be able to force citizens to purchase a public or private health care product. This doesn’t mean that your citizens amendment would block ObamaCare [or] override ObamaCare, the mandate, the federal mandate. What we’re talking about is what we can do in the state.

Jon Caldara replies:

Exactly … it certain sets up a good legal 10th Amendment challenge to the mandate, and only the mandate part, of ObamCare. And therefore we have more ammunition when it comes to protecting our 10th Amendment rights. This will certainly go up to the courts. Even now Attorney General John Suthers and nearly twenty of his compatriots are suing … the federal government.

If they are successful, and I expect they will be, this Amendment becomes absolutely crucial in Colorado. And the reason is if they find out that the feds cannot mandate to buy health insurance at the levels that they want and buy the companies they want and by the size they want, the federal government will do what the federal government always does: put pressure on the states, withhold money, and make the states do their bidding as their servants. Should this amendment become constitutional law, then the state of Colorado can’t do the federal government’s bidding.

Even if no lawsuit succeeds in overturning federally-mandated insurance (as unconstitutional), state-level initiatives against parts or all of HR 3590 (”ObamaCare”) have political value, as discussed in this St. Louis Today article:

political repercussions of [Missouri’s] Proposition C are more significant than any legal ones. But, [said Patrick Tuohey, campaign manager for Missourians for Health Care Freedom], politics can be a powerful force that can lead to an effective repeal of the federal law.

[Tuohey] points to the the Real ID bill passed in 2005 by Congress that created some national standards for drivers licenses and other forms of state identification. There has been so much political opposition to the law that it has yet to be implemented, and Congress is considering changes.

Randy Barnett, professor of constitutional law at Georgetown University Law School, said the national debate over medical marijuana shows how state politics can affect federal policy.

Over the last decade, he said, several states have enacted laws allowing for the sales of medical marijuana, even though such sales contradict federal law. The Obama administration has reacted to the strength of the movement by deciding to allow the state laws to continue in force.

“It’s a real-world example of how these state initiatives can change the politics and ultimately the enforcement,” said Barnett, who took one of the landmark medical marijuana cases to the Supreme Court.