Can the States Nullify Health Care Reform?
N Engl J Med 2010; 362:869-871March 11, 2010DOI: 10.1056/NEJMp1001345
On February 1, the Virginia Senate passed a bill stating that “No resident of this Commonwealth . . . shall be required to obtain or maintain a policy of individual insurance coverage.” In considering this legislation, Virginia joins numerous other states with pending legislation aimed at limiting, changing, or opposing national health care reforms (see map2009 and 2010 Legislation Opposing Aspects of Health Care Reform.).1 What is going on here?
Whereas states generally adopt laws to achieve a legal effect, nullification laws are pure political theater. On its face, the Virginia bill exempts residents of the Commonwealth from having to comply with a law requiring the purchase of health insurance. Although the bill is phrased in the passive voice, its intent is clearly to block the implementation of a federal mandate requiring all individuals to carry health insurance. But achieving this aim is constitutionally impossible.
The Supremacy Clause of the United States Constitution (article VI, clause 2) states, “This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Indeed, one of the primary reasons for adopting our Constitution in place of the Articles of Confederation was to establish the supremacy of national over state law. Our only civil war was fought over the question of whether national or state law was ultimately supreme.
Within the past 60 years, the most important confrontation between federal law and states' rights concerned school desegregation. Faced with federal law commanding the desegregation of its schools, Arkansas amended its constitution to prohibit integration. In Cooper v. Aaron (1958), the only Supreme Court opinion I know of that was signed individually by each of the Court's nine justices, the Court decisively reaffirmed the supremacy of federal law and rejected the state's claimed right to nullification. More recently, a number of federal courts have rejected claims that a state could refuse Medicaid coverage of abortions in cases of rape and incest after the Hyde amendment (which originally prohibited the use of federal funds for coverage of abortion except when the mother's life was at risk) was changed to permit federal funding for abortions under these circumstances.2 These decisions held that state constitutional provisions must yield even to federal regulations. State law cannot nullify federal law. This principle is simply beyond debate, and state legislators, many of them lawyers, know that.
The purpose of these laws, therefore, is not legal but rather political. The Virginia bill is a second-generation nullification statute. Earlier proposals in other states, including a constitutional amendment proposed by the Arizona legislature, are worded differently. These bills protect a right to pay health care providers directly for services and to purchase private health insurance. In other words, they were proposed to oppose a single-payer system or mandatory public option, neither of which has ever been part of the current federal reform legislation. These antireform bills were based on model legislation put forward by the American Legislative Exchange Council, an organization funded by wealthy right-wing foundations to support conservative state legislative causes, which was reportedly aided in this endeavor by the insurance industry.3 Because these bills were not aimed at any actual federal legislation, they seem to have simply been part of a larger campaign to mischaracterize federal legislative efforts and stir up opposition to any federal health care reform.
The Virginia bill, in contrast, is aimed at an actual provision of the federal health care reform bill — the individual mandate. As the legislative findings that accompany the individual mandate in the Senate bill emphasize, the mandate is fundamental to the legislation. The government cannot require insurers to take all comers, regardless of health status and preexisting conditions, unless the healthy as well as the unhealthy are required to purchase health insurance. We will not be able to reduce providers' burden of uncompensated care or the alarming rate of medical bankruptcies unless all Americans who can afford health insurance buy it.
The individual mandate, however, is uniquely vulnerable. First, it is strongly opposed by conservatives and libertarians. The fact that five of the Virginia Senate's Democrats voted for the state senate bill sends a clear message to Virginia's congressional delegation that a federal bill containing such a mandate is going to be very unpopular with many of their constituents.
Second, the individual mandate is somewhat vulnerable constitutionally. Although the argument that the mandate is constitutional is overwhelming, as Balkin noted in a recent issue of the Journal, 4 it is hard to think of a direct precedent for it. And the argument against it is not frivolous, unlike most of the other constitutional arguments that have been raised against the pending legislation. The state bills can be read as briefs to the Supreme Court on this issue.
Third, the mandate is particularly vulnerable from an enforcement perspective. It essentially imposes a tax penalty (to begin in 2014 and to be fully phased in by 2016) on uninsured individuals who do not purchase health insurance, subject to a number of exceptions for those who cannot afford health insurance or who oppose it for religious reasons. Individuals are supposed to pay this penalty with their annual income taxes, but the Senate bill waives criminal penalties and prohibits the Internal Revenue Service (IRS) from imposing liens or levies on a taxpayer's property for failure to pay. Compliance will, therefore, be largely voluntary (although the IRS can still make a tax resister's life miserable, whether or not it can ultimately collect). The state bills can thus be seen as invitations to civil disobedience that counsel state citizens to “violate the federal law, wave this statute in their face, and dare them to come after you.”
I know of two other significant state campaigns — one ongoing, one historical — to rally or support state citizens in resisting federal law. In the ongoing effort, more than a quarter of the states have now legalized medical marijuana in the face of a federal prohibition. Although the Supreme Court has emphatically upheld the authority of the federal government to outlaw medical marijuana, the Justice Department announced last fall that the prosecution of users of medical marijuana was not “an efficient use of limited federal resources.”5 It is possible that the federal government will eventually conclude that it is not possible to enforce the individual mandate for health insurance. But if individuals successfully resist accepting responsibility for being insured, there will be no way of expanding affordable coverage in a system that depends on private insurers. If government funding of health care must therefore be increased, it may not be the result resisters want.
In the historical effort, demagogues such as the late Senator Harry Byrd (D-VA) mounted the Campaign for Massive Resistance to school desegregation in Virginia and other states during the 1950s and 1960s. Virginia passed a series of statutes intended to maintain the strict segregation of its schools, even going so far as to close the public schools in one county for 6 years. The legislation was held unconstitutional by the federal courts, and the campaign eventually collapsed. Today, most Virginians regard the whole episode as an embarrassment. The state legislature has even adopted reparations legislation to help people who were denied an education during the campaign. Perhaps if health care reform is successfully implemented and Americans come to fully appreciate its benefits, they will look back at the current efforts with similar embarrassment.
These resistance efforts are not about law — they are about politics. But of course at this point, health care reform is only about politics, except insofar as it is still about the morality of equal treatment for all.
Disclosure forms provided by the author are available with the full text of this article at NEJM.org.
This article (10.1056/NEJMp1001345) was published on February 10, 2010, at NEJM.org.
From Washington and Lee University School of Law, Lexington, VA.
Cauchi R. State legislation opposing certain health reforms, 2009-2010. National Conference of State Legislatures, February 4, 2010. (Accessed February 8, 2010, at http://www.ncsl.org/default.aspx?tabid=18906.)
Hern v. Beye, 57 F.3d 906 (10th Cir. 1995).
Sourcewatch: American Legislative Exchange Council home page. (Accessed February 8, 2010, at http://www.sourcewatch.org/index.php?title=American_Legislative_Exchange_Council.)
Ogden DW. The justice blog: investigations and prosecutions in states authorizing the medical use of marijuana. Washington, DC: Department of Justice. (Accessed February 8, 2010, at http://blogs.usdoj.gov/blog/archives/192.)
- Citing Articles (2)
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Alan C. Monheit. (2010) Now for the REALLY Hard Part: Implementing Health Reform. Inquiry 47:2, 97-102