Why waste money on ballot initiatives when it’s needed to beat Democrats?

Jon Caldara, president of the Independence Institute, a conservative advocacy organization, wants to spend a ton of money on a ballot initiative that would somehow dictate that Colorado would try to opt out of ObamaCare (HR 3590), whatever that turns out to be. The idea, I guess, is to have Colorado refuse to be stuck with unfunded health care mandates from Washington. He wants to protect free riders who don’t buy health insurance and cheat those who buy insurance and taxpayers by declaring bankruptcy to get out of paying their uninsured medical bills. Click headline to see my questions and links:

• Would such an opt out by a state be constitutional? 
• Would Caldara’s initiative diverte political contributionsand volunteer campaign workers to his organization and initiative from conservative politicians in a year that they have a chance to win a critical U.S. Senate seat, more House seats and the governor’s office?
• Would Colorado be better served by electing more GOP members of Congress who would at first dilute the Democrats’ power to create new mandates on the states and eventually may win back control of Congress for Republicans?
• Would voters take this initiative seriously, or would they see it as a publicity stunt and fundraising gambit by the Independence Institute?
• Would Democrats love to see such an initiative on the ballot because it would rally their base?
• Would the initiative draw more Republicans to the polls than will vote no matter what in reaction to the Democrats’ efforts to bankrupt the country and micromanage our lives? Would the marginal cost of promoting the initiative be more or less than the marginal benefit?

In reaction to Caldara’s announcement, the Colorado Springs Gazette does a nice job of raising some Constitutional issues in these impact graphs:

Caldara understands the dangers of a system that doesn’t give citizens choices in paying for health care, because he has met and interviewed Canadians who travel to the United States to save their lives. The Canadian government has long forbidden most health care providers from accepting out-of-pocket payment for services, trying to prevent a two-tiered system in which the wealthy jump to the front of waiting lines. As a result, people willing to pay for immediate life-saving care typically travel to the United States.

The Canadian system has enforced equal access for all Canadians, which has resulted in rationing and years-long waiting lists for critical medical services. The government promises financial “coverage” for all who need health care, but coverage isn’t the same as care.

Throughout this country’s history, the courts have given us confusing precedent regarding the rights of state governments to protect citizens from federal authority. In Roe v. Wade, the Supreme Court of the United States ruled that state laws can’t protect fetuses from most abortions, restricting states’ rights on a basis of privacy concerns. Next summer, the Supreme Court will decide whether the Second Amendment prohibits state and local governments from imposing strict gun laws on citizens, and most legal pundits predict the court will rule in favor of individuals and their gun rights. In Brown v. Board of Education of Topeka, the Supreme Court declared that state law could not establish separate schools for blacks and whites, guaranteeing individuals more school options and upholding the legal concept known as freedom of association.

In my summary of Senator Harry Reid’s notorious amendment to HR 3590, I noted:

• Section 10106. Amendments to subtitle F. This looks like an attempt to show that the act would be Constitutional under the 10th Amendment and contains a lot of questionable propaganda desgined to show Congressional intent when and if the act is challenge in court. p. 67.

• Penalties or fines for individuals who don’t buy insurance. Fines as a percentage of household income: 2014, .5%; 2015, 1%; After 2015, 2%. Since health insurance is still a bargain for consumers, costing most more than 5% of household income, this is an invitation to freeride and game the system. p. 73.

George Will reports the arguments that such state constitutional amendments are legal under the U.S. Constitution. His impact graphs:

But does not federal law trump state laws? Not necessarily. Clint Bolick, a Goldwater Institute attorney, says, “It is a bedrock principle of constitutional law that the federal Constitution established a floor for the protection of individual liberties; state constitutions may provide additional protections.”

In 1997, the U.S. Supreme Court held that under the Constitution’s system of “dual sovereignty,” states’ “retained sovereignty” empowers them to “remain independent and autonomous within their proper sphere of authority.” The court has been critical of the “federalism costs” of intrusive federal policies, and recently has twice vindicated state sovereignty in ways pertinent to Novack’s plan.

In 2006, the court overturned an interpretation of federal law that would have nullified Oregon’s “right to die” statute. The court said states have considerable latitude in regulating medical standards, which historically have been primarily state responsibilities.

In 2000, Arizona voters’ endorsed an English immersion policy for students for whom English is a second language. Federal courts had issued an injunction against such policies because they conflicted with federal requirements of bilingual education. This year, however, the Supreme Court mandated reconsideration of the injunctions because they affect “areas of core state responsibility.”

The court says the constitutional privacy right protects personal “autonomy” regarding “the most intimate and personal choices.” The right was enunciated largely at the behest of liberals eager to establish abortion rights. Liberals may think, but the court has never held, that the privacy right protects only doctor-patient transactions pertaining to abortion. David Rivkin and Lee Casey, Justice Department officials under the Reagan and first Bush administrations, ask: If government cannot proscribe or even “unduly burden”—the court’s formulation—access to abortion, how can government limit other important medical choices?

Democrats’ health bills depend on forcing individuals to buy insurance or face severe fines or imprisonment. In 1994, the Congressional Budget Office said forcing individuals to buy insurance would be “an unprecedented form of federal action,” adding: “The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

This year, the Congressional Research Service delicately said “it is a novel issue whether Congress may use the (Commerce) Clause to require an individual to purchase a good or service.” Congress has the constitutional power to “regulate commerce ... among the several states.” But a Federalist Society study by Peter Urbanowicz and Dennis Smith judges it perverse to exercise coercion under the Commerce Clause “on an individual who chooses not to undertake a commercial transaction.” As Sen. Orrin Hatch, R-Utah, says, there is “a fundamental difference between regulating activities in which individuals choose to engage”—e.g, drivers can be required to buy auto insurance—“and requiring such activities” just because an individual exists.

Unless Congress puts teeth into the mandates that people buy insurance, they won’t work, and the mandates won’t be much of an issue.

Caldara and his conservative advocacy group do a lot of good for Colorado. I’m just not sure this initiative makes sense for 2010. If Caldara doesn’t think that it’s a good idea to mandate that everyone who can afford it buy health insurnce, he and his think tank should come up with ways to revise the bankruptcy laws and other regulations to make it harder for the uninsured free riders to game the system and mooch off taxpayers.

Interesting that Caldara is assuming that ObamaCare will be enacted.

Links:

Efforts already underway in Colorado to blunt federal health care reforms. By Jessica Fender.

Defend Colorado from ObamaCare. By Jon Caldara.

OUR VIEW: Caldara takes on health care reform (with poll).

Summary, comments on 383-page amendment to ObamaCare (HR 3590). The Business Word, 12.19.09.

Health Lobby Takes Fight to the States. By DAVID D. KIRKPATRICK.

State sovereignty Resolutions: The NY Times weighs in. 

Fighting a coercion clause. By George Will.

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