Outside the Beltway: States Consider Prohibiting the Individual Mandate

Brandon Stewart /

The Washington Post reports that the Virginia Senate passed a measure yesterday that that would prohibit the imposition of the individual mandate — a feature of both the current House and Senate health care bills. Besides being the first state to adopt such a measure, it is especially remarkable coming out of the Virginia Senate, where Democrats hold the majority. As The Post reports, the measure came “less than a week after President Obama implored Democrats in Washington not to abandon their health-care efforts” during the State of the Union.

According to another story in the Associated Press, an increasing number of state legislatures have begun considering such legislation. The individual mandate — which would force all U.S. citizens to purchase health insurance — has outraged many Americans and has led to a public backlash against the proposal.

According to the AP:

Lawmakers in 35 states have filed or proposed amendments to their state constitutions or statutes rejecting health insurance mandates, according to the American Legislative Exchange Council, a nonprofit group that promotes limited government that is helping coordinate the efforts. Many of those proposals are targeted for the November ballot, assuring that health care remains a hot topic as hundreds of federal and state lawmakers face re-election.

Supporters of the state measures portray them as a way of defending individual rights and state sovereignty, asserting that the federal government has no authority to tell states and their citizens to buy health insurance.

“I think the alarm bell has been rung,” said Clint Bolick, the constitutional litigation director at the Goldwater Institute in Phoenix, which helped craft an Arizona amendment on this November’s ballot that has been used as a model in other states.

“These amendments are a way to manifest grass roots opposition” to federal health insurance mandates, Bolick said. “They kind of have a life of their own at this point. So while some of the pressure may be off, I think that this movement has legs.”

There is some discussion as to whether these measures, even if adopted, will have much effect if Congress manages to pass a health care bill with an individual mandate.

“They are merely symbolic gestures,” said Michael Dorf, a constitutional law professor at Cornell University. “If this Congress were to pass an individual mandate, and if it is constitutional — which I believe it is — the express rule under the supremacy clause (of the U.S. Constitution) is that the federal law prevails.”

However, as Professor Dorf points out, whether these measures are symbolic or not hinges on whether a federal mandate is Constitutional, something about which Heritage has serious doubts. Regardless of whether these measures turn out to have teeth or not, they are yet another sign of the anger many Americans have towards Obamacare. A sign that the President and Congressional leaders would be wise not to ignore.