COLUMBUS -- Can a state use its constitution to block a federal law?
Even if the U.S. Supreme Court upholds President Obama's health-care law, perhaps as early as next spring, the Ohio Constitution by that time could contain a provision prohibiting its state leaders from implementing it.
In the end, Ruth Colker, distinguished professor in constitutional law at Ohio State University's Moritz College of Law, said the answer to both issues will be the same.
If the nation's high court decides Congress did not step beyond its authority in enacting the law, then even a state constitution can't stand in its way.
"You can't pick and choose federal statutes that you don't like," she said. "We're a union."
Voters have begun casting absentee ballots in the Nov. 8 election on Issue 3, which asks them to add a 21st right to the Ohio Constitution's Bill of Rights alongside trial by jury, freedom of speech and press, bearing arms, protections against slavery, and cruel and unusual punishment, and others.
The Ohio Healthcare Freedom Amendment would prohibit a law or rule from any government that would force individuals to buy health-care coverage or employers to provide it under the threat of fines. The language doesn't specifically mention and isn't limited to the controversial federal health-care law, but its supporters have made it clear that the law is their primary focus.
The amendment would specifically exempt any law or rule in effect as of March 19, 2010, about the time of the health-care reform law's passage.
The federal Patient Protection and Affordable Care Act, beginning in 2014, requires individuals to acquire minimum coverage either through their employers, the private insurance market, government programs such as Medicare and Medicaid, or new state-run pools through which insurers would compete for the business of lower-income families and small businesses.
To add Section 21 to Article 1 of the Constitution of the State of Ohio
The proposed amendment would provide that:
No law or rule shall compel, directly or indirectly, any person, employer, or health-care provider to participate in a health-care system.
No law or rule shall prohibit the purchase or sale of health care or health insurance.
No law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance.
The proposed law would not:
Alter laws or rules in effect as of March 19, 2010.
Affect which services a health-care provider or hospital is required to perform or provide.
Affect terms and conditions of government employment.
Affect any laws calculated to deter or punish wrongdoing in the health care industry.
SOURCE: Ohio Secretary of State
But Maurice Thompson, executive director of the nonprofit 1851 Center for Constitutional Law that wrote the amendment, said that Ohioans could make a separate argument that states without such a constitutional amendment could not.
"Even if the Supreme Court says the commerce clause allows the legislature to pass this legislation, do individuals nevertheless have the right to be free from it?" he asked.
Supporters of the amendment probably would fire the first legal shot, he said. If the amendment passes, a case could be brought to prohibit Gov. John Kasich from acting to establish Ohio's state-run insurance pool under the federal law.
"We may direct our efforts there first," Mr. Thompson said. "But if somebody in Ohio believes in alternative medicine, does not have health insurance, doesn't want health insurance, and wants to spend their money in a different way, they can argue that under the Ohio Constitution they should be free from mandatory participation in a health-care system."
The proposed amendment was initiated last year by the conservative Tea Party soon after the federal law's passage, but it was a late infusion of manpower from the Ohio Republican Party that put it over the top for the 2011 ballot.
Ohio Attorney General Mike De- Wine, a Republican, has joined with 25 other states to challenge Congress' constitutional authority to impose such a mandate on Americans under its authority to regulate interstate commerce.
Federal courts have issued a series of conflicting decisions. In the appellate decision closest to home, the U.S. 6th Circuit Court of Appeals, based in Cleveland, upheld the law. The U.S. Supreme Court has been asked to hear an appeal of a separate decision by the 11th Circuit Court of Appeals in Atlanta that struck down the law.
Mr. DeWine said he believes the multistate litigation challenging the law has a good argument that Congress overstepped its authority. He also supports Issue 3.
"If it passes, [the amendment] would prohibit Ohio from enacting on its own something similar to what Massachusetts did," he said. "That's a very strong argument in favor of it. It also serves as a public referendum on the issue."
But he said he has doubts that the constitutional amendment could be applied to the federal law, should the high court ultimately decide for Mr. Obama in the multistate case.
"If you have a decision of the Supreme Court of the United States that validates the Obama health-care law, I'm not sure how passage of this act would roll that back based on the Supremacy Clause,'' Mr. DeWine said. That clause in the U.S. Constitution establishes federal law as supreme in cases in which it conflicts with state or local law.
Assuming the Supreme Court takes the appeal, it's unlikely to make a decision before next spring or early summer, long after Ohio voters have weighed in on Issue 3. Ms. Colker said a decision on whether Ohio's Constitution would itself be constitutional could be decided by a lower court before the high court rules.
"The day after that issue takes effect, a lawsuit could be brought by someone who has standing to argue that Issue 3 is unconstitutional," Ms. Colker said. "That lawsuit would proceed independently of the Supreme Court acting. … If Congress exceeded its authority, it's still not the case that the people of Ohio can pick and choose what federal statutes they will follow.
"Timing-wise, coming first, the court would assume that all federal statutes are constitutional until they are struck down," she said.
Ohio's proposed amendment would not block more popular elements of the law, such as prohibiting insurers from denying coverage to those with pre-existing conditions and allowing parents to keep dependent children on their policies up to age 26.
Supporters of the federal law, however, have argued that an attack on the individual and business mandates is also an attack on the law as a whole. They note that the promise of additional customers to insurance companies to help spread the risk was part of the deal to help them pay for the law's more popular provisions.
Contact Jim Provance at: firstname.lastname@example.org, or 614-221-0496.