Conferees testifying on the Health Care Freedom Amendment butted heads today on whether the measure would provide the state with adequate protection from being forced to comply with any health-care mandates that could be passed by the federal government.

A subcommittee of the Judiciary Committee met this morning to hear testimony on the Health Care Freedom Amendment, Senate Concurrent Resolution 1626. The resolution needs to pass both chambers with a two-thirds majority for it to be placed on the ballot for Kansans' consideration in 2010.

If the measure gained the necessary approval, it would become a part of the Kansas Constitution.

SCR 1626 would preserve the ability of Kansans to choose the type of health-care they would like to receive, and protect residents from being forced to purchase any health-care insurance or from being forced to participate in any health-care system. If the amendment were adopted, residents would still have the ability to participate in any federal health-care regulations or programs that could become law if they chose.

“This is not about nullifying a federal law; this is about protecting the liberty of the citizens of Kansas,” said sponsor of the initiative Sen. Mary Pilcher-Cook, R-Shawnee. Pilcher-Cook is a publisher of Kansas Liberty news.

Kris Kobach, professor of constitutional law at the University of Missouri-Kansas City School of Law and candidate for Kansas secretary of state, testified that he believed the Health Care Freedom Amendment could serve as an important safeguard for Kansas residents.

If the federal government did pass legislation that requires all residents to purchase health-insurance or participate in a public health program, Kobach said Kansas residents or the state as a whole could utilize the Health Care Freedom Amendment in the courts to argue against having to comply with the mandates.

“It does change the posture in a way that could be a significant advantage,” Kobach said.

The Health Care Freedom Amendment would likely be used in the courts after a Kansas resident received some type of admonition for failing to comply with a federal health mandate. The individual could either use the amendment to challenge the mandate, or the attorney general’s office could step in to protect the freedom of Kansas residents by using the Health Care Freedom Amendment.

Kobach said that an opinion in the 1991 court decision of Gregory vs. Ashcroft could provide the state with some leverage in successfully using the Health Care Freedom Amendment for protection. The 1991 case focused on whether a state law that required judges to retire at age 70 violated the federal Age Discrimination in Employment Act of 1967.

The Supreme Court determined that the age retirement requirement did not violate the federal statute. In her written opinion, Supreme Court Justice Sandra Day O’Connor applied the Plain Statement Rule, which is a precedent that requires the courts to err on the side of the state in cases in which Congress is not clear on its regulatory intent when it passes laws that interfere with state regulations or functions. The Plain Statement Rule acts as a check on the ability of the federal government to regulate the states.

Whether the decision of the federal government to require all citizens to purchase health insurance is constitutional, is another area of leverage that could be used by the states to help protect the freedom of Kansas residents. Kobach argued that such a mandate would not be constitutional.

“Never before has Congress ever forced Americans to purchase anything,” Kobach said. “It is completely unprecedented.”

Sen. Terry Bruce, R-Hutchinson and member of the Senate Judiciary Subcommittee, agreed with Kobach and stated that he believed that such a mandate would be “blatantly unconstitutional.”

Conferee Stephen McAllister, a professor of constitutional law at the University of Kansas, testified that he was doubtful that the Health Care Freedom Amendment would serve as anything more than a symbolic message.

“Congress says, ‘This is what will be done,’ and whether there is an amendment to our Constitution, the end point answer is that Congress has the power to do that,” McAllister said.

McAllister said he was unsure that the amendment would provide Kansas with any particular power and urged legislators to consider any unintended consequences that could come along with the adoption of the Health Care Freedom Amendment.

“It will not constrain Congress but it will constrain this body,” McAllister said in reference to the Kansas Legislature.

Dave Roland, policy analyst for the Show-Me Institute, which is a Missouri-based think tank, countered McAllister’s testimony and said he expected the Health Care Freedom Amendment had the ability to serve as something greater than a symbolic gesture.

Roland also agreed with Kobach and Bruce that a federal health-care mandate would be considered unconstitutional.

“It is my opinion that the Supreme Court is likely to find that an individual health insurance mandate violates the provisions of the U.S. Constitution,” Roland said in his testimony. “The adoption of this amendment — and others like it in our sister states — would at a minimum offer the potential for a case that would test the boundaries of state sovereignty under our current constitutional system.”

One thing each of the conferees agreed upon was that if the federal government did pass a plan that created health-care mandates on United States citizens, the matter would end up in a lengthy and controversial debate in front of the Supreme Court.

Resources:

SCR 1626

Dave Roland's testimony

Kris Kobach's testimony

Previous Kansas Liberty stories:

Health Care Freedom jumps hurdle in Senate

Supporters and opponents of ‘Health Care Amendment’ plan rival rallies

State lawmakers push to preserve Kansans’ right to decide on health care

The Week in Review