State Legislators Flout the U.S. Constitution

In adopting a bill purporting to void the federal health-care law's mandate that individuals be insured or pay a penalty, state legislators have thumbed their nose at the U.S. Constitution.

Would that Andrew Jackson could rise from his grave at the Hermitage and admonish them as he did South Carolinians in his landmark 1832 Proclamation Regarding Nullification aimed at that state convention's ordinance declaring certain federal tariffs null and void. Jackson invoked the clause in the Constitution that declares that "the laws of the United States, its Constitution, and treaties made under it, are the supreme law of the land;" and for greater caution adds, "that the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

Old Hickory went on to state that, "it is the intent of this instrument to PROCLAIM, not only that the duty imposed on me by the Constitution, ‘to take care that the laws be faithfully executed,' shall be performed to the extent of the powers already vested in me... but to warn the citizens of South Carolina, who have been deluded into an opposition to the laws, of the dangers they will incur by obedience to the illegal and disorganizing ordinance of the convention...and to point out to all the perilous situations into which the good people of that state have been led, and that the course they are urged to pursue is one of ruin and disgrace to the very state whose rights they affect to support."

The delusion under which the Republican majorities in the state House and Senate recently adopted the so-called "Health Freedom Act" by near party-line votes cannot be ascribed to ignorance of the law. They had the state Attorney General advising them last year, albeit in less forceful terms than Jackson's, that, "our comparison of SB 3498/HB 3433 with the provisions of the Federal Act leads us to the conclusion that the former are preempted by the latter."

The numbers of the bills that beget the Health Freedom Act have changed in this year's legislative session, but their content remains the same. Specifically, the Act provides that, "It is declared that the public policy of this state, consistent with our constitutionally recognized and inalienable right of liberty, is that every person within this state has the right to purchase health insurance or to refuse to purchase health insurance. The government (meaning any government) may not enact a law that would restrict their rights or that would impose a form of punishment for exercising either of these rights. Any law to the contrary shall be void at initio." Gov. Bill Haslam lamentably signed this specious piece of legislation on March 18 without making any public comment.

Political posturing aside, I do not doubt that many supporters of this act sincerely believe that the federal Affordable Care Act of 2010, or at least its individual mandate, is unconstitutional. But the place to challenge the validity of its contested provisions, which don't take effect until 2014, is in the courts, not by a legislative act of defiance.

Already, five federal district courts have ruled on sundry suits challenging its constitutionality, with three of them upholding it and two of them striking it down. These cases will almost certainly reach the U.S. Supreme Court by next year, and it will be the arbiter, as it should be, of whether Congress has the authority to compel people to get health insurance or pay a penalty for not doing so. (The penalties start at $750 a year and work their way up to 2.5 percent of taxable income.)

It's a close question, but it won't be decided on the basis of some vague "inalienable right of liberty." Rather, it will turn on whether the mandate is supported by Congress' constitutional power "to regulate commerce...among the states." If people can be required to buy health insurance today, what about broccoli or you name it tomorrow, the nay-sayers posit. But hardly anyone disputes the prognostication that without the individual mandate, the act's entire construct for making health-care coverage accessible and affordable to all Americans would collapse.

Instead of resorting to fatuous acts of defiance, Tennessee legislators should take President Obama up on his invitation to devise alternative ways of accomplishing that worldly objective. The act already provides for allowing states to do so starting in 2017, and Obama should get bipartisan support for his proposal to advance that date to 2014.

As a starting point in Tennessee, it's tempting to say that legislators should look to the recommendations of our own distinguished former Gov. Phil Bredesen as set forth in his recent book Fresh Medicine. The ultimate solution for covering all Americans that Bredesen envisions is a single-payer system financed by a payroll tax on all employers and employees (i.e. Medicare for all). But he acknowledges in his book that the body politic is probably not ready for such a transformation in the near term.

The nullification crisis of 1832 was resolved by ameliatory tariff legislation enacted in early 1833—the handiwork of Sen. Henry Clay of Kentucky. If only someone today could rise to the stature of The Great Compromiser, as Clay was known, in overcoming the divisiveness that is now plaguing the nation over health care and other issues.