Tuesday, August 3, 2010
Missourians overwhelmingly voted to nullify the federal health insurance mandate by adopting state law, effective immediately, that allows Missourians not to purchase health insurance in violation of the federal mandate. This was the first of at least three state referenda on the federal mandate. We posted previously on Missouri's referendum here.
The vote will have no constitutional effect (with one possible and recently created exception, discussed below). The constitutional question for the federal health insurance mandate is whether Congress has authority to enact it by way of the Commerce Clause or General Welfare Clause. If Congress has authority--a question to be determined in the courts--the several state attempts to nullify the federal law are invalid. If Congress lacks authority, they are irrelevant. Either way, Missouri's new law has no substantive effect.
But Monday's ruling in the Virginia case challenging the federal mandate suggests that the Missouri vote might be constitutionally relevant in one way: to establish state standing to challenge the federal mandate in court. In Monday's district court ruling denying the federal government's motion to dismiss, the court ruled that Virginia had standing to challenge the federal mandate because Virginia sought to enforce its own nullification law, the Virginia Health Care Freedom Act. Virginia seemed to have adopted this law for the sole purpose of establishing standing in its case against the federal government--and it worked. Missouri, by contrast, passed its nullification law by referendum--a perhaps less obviously opportunistic way to pass a conflicting state law. If Virginia's Freedom Act is sufficient to establish standing, Missouri's new nullification law is even more, should Missouri file a case.