TALLAHASSEE – Floridians could opt out of the federal health care overhaul plan under a ballot proposal that cleared a House panel Monday, but constitutional law experts say it won’t stand up in court.
The proposed state constitutional amendment (HJR 37) won approval from the Health Care Regulation Policy Committee on a 10-3 party-line vote – Republicans for and Democrats against – less than 24 hours after the U.S. House passed the federal legislation over unanimous GOP opposition.
If the amendment gets on the November ballot and is approved by 60 percent of voters, it would prohibit individuals and employers from being forced to participate in the federal system President Barack Obama is expected to sign into law. It also would apply to any future state health insurance plan.
“In other words, we can’t be forced to do something we might not want to do,” said Rep. Scott Plakon, a Longwood Republican who is sponsoring the amendment. He said the federal bill and state plans that require citizen participation such as in Massachusetts “are anti-freedom, anti-liberty and very likely unconstitutional.”
The federal legislation is expected to extend coverage to 32 million uninsured Americans while requiring almost everyone, except low-income people, to have health insurance or else pay a fine starting in 2014.
Plakon’s amendment is aimed at blocking the individual mandate. Florida is among 38 states that are considering or have passed laws or constitutional amendments with that intent, according to the National Council of State Legislatures.
“It would be a waste of time to try to pass something of that kind,” said Stetson University law Professor and Dean Emeritus Bruce Jacob. “Federal laws are the supreme laws of the land.”
In a telephone interview, Jacob cited what’s known as the “supremacy clause” of the U.S. Constitution that says federal laws pre-empt conflicting state laws.
Other constitutional law experts, including Georgetown University’s Randy E. Barnett and Cornell University’s Michael Dorf, have expressd the same view. Jacob said state sovereignty isn’t a issue.
“That battle was fought in the 1860s in the Civil War and the South lost, the states lost,” Jacob said.
While most of the committee debate focused on the pros and cons of the federal legislation, Plakon later acknowledged the supremacy clause would apply to his amendment, but only if the individual mandate is upheld by the courts.
He noted several Republican state attorneys general, including Florida’s Bill McCollum, are planning to challenge that provision on grounds it would violate constitutional freedoms. Plakon said many constitutional law experts support that argument.
Jacob isn’t among them. He called McCollum’s planned lawsuit “more of a political ploy than a valid legal action” and said there’s plenty of precedent for the insurance requirement.
“The federal government certainly can compel you to pay taxes, can compel people to join the Army,” Jacob said. “State statutes do the same thing. They compel you to get a driver’s license.”
Plakon said the requirement to buy insurance is different.
“You do have a choice of whether you drive or not,” he said. “You don’t have a choice of whether you breathe or not.”
Plakon’s proposal needs approval from three more committees before it can go to a floor vote.