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Ryan Kiesel, the author of this guest blog, has served as State Representative from District 28 since 2004 and is not seeking reelection. Ryan is the leader of the Oklahoma Lawyer Chapter of the American Constitution Society.
This November, Oklahoma voters will decide State Question 756, determining whether Oklahoma will participate in what is likely to be a futile attempt to block the recently approved federal health care reform. In 2014, as part of the health care reforms contained in the Affordable Care Act, “most individuals who can afford it will be required to obtain basic health insurance coverage or pay a fee to help offset the costs of caring for uninsured Americans“. Individuals and families that fall below certain income levels would be exempt from the mandate and tax penalty. Opponents of the Affordable Care Act argue the federal government does not have the authority to mandate coverage. However, this argument runs counter to over a century of Constitutional precedent, and a challenge to the law would only precipitate lengthy, frivolous, and costly litigation that Oklahoma would ultimately lose.
The author of the measure that placed SQ 756 on the ballot said “this measure will hopefully bring about a court case that we need to have.” Perhaps if the legal questions at issue were unsettled, litigation would be necessary to establish a clear interpretation of Congress’ authority to act and the ability of states to nullify or opt out of federal law. But that is not the case. While the politics of health care reform are still evolving, the legal issues raised by health care reform have long been settled, and barring a sweeping dismissal of precedent by an activist court, we already know the outcome of state-based challenges.
The most common legal challenges to health care reform argue: 1) it exceeds Congress’ authority under the commerce clause; 2) it exceeds Congress’ power to collect revenue, and 3) states have the authority to opt out of federally mandated health care reforms.
Taking these arguments in order, for nearly 70 years the Supreme Court has held that under the commerce clause, Congress has the “authority to regulate activities that have a substantial effect on interstate commerce.” The Supreme Court has interpreted this authority to extend to regulating wheat crops, prohibiting racial discrimination by hotel and restaurant owners, and recently upheld Congress’ authority to prohibit the use of medical marijuana. With “health care expenditures in 2007 amount[ing] to $2.2 trillion, or $7,421 per person, and account[ing] for 16.2 percent of the gross domestic product,” it will be extremely difficult, if not impossible, to prevail on the argument that health care does not meet or exceed the “substantial effect” test the Court has consistently applied.
Should the Supreme Court adopt the argument that Congress overstepped its powers, it would be a monumental reversal of precedent, jeopardizing not only the health care bill, but also other federal laws such as the Civil Rights Act of 1964 and the Americans with Disabilities Act, which were also passed under Congress’ authority to regulate interstate commerce.
Second, the Supreme Court has held that “[i]t is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities it taxes.” Moreover, it has been well established that Congress may exercise its powers to collect revenue and spend for the General Welfare to achieve goals that are not covered by the other powers enumerated in Article I.
Finally, the assertion that states can pick and choose which federal law to follow represents a fundamental misunderstanding of federalism, and violates the Supremacy Clause of the Constitution that provides that federal law is the supreme law of the land, which no state can negate. As President Ronald Reagan’s former solicitor general, Charles Fried, stated on this point, “The notion that a state can just choose to opt out is just preposterous. One is just left speechless by the absurdity of it.”
The voters of Oklahoma do not need SQ 756 to voice their opposition to federal health care reform. They did that when they elected a congressional delegation that unanimously opposed the measure in Washington. Further, in the wake of a budget crisis, the people of Oklahoma should not be expected to bankroll political gimmicks in the form of costly and futile litigation. Rather, it is time for leaders of both parties to begin the process of preparing for the implementation of reforms that stand to cut the number of uninsured in our state by half, and improve Oklahoma’s ability to finance health care for its citizens.
The opinions stated above are not necessarily the opinions of OK Policy, its staff, or its board. This blog is a venue to help promote the discussion of ideas from various points of view and we invite your comments and contributions. To see our guidelines for blog submissions, click here. Click here for a complete list of State Questions on the ballot in November.
“Finally, the assertion that states can pick and choose which federal law to follow represents a fundamental misunderstanding of federalism, and violates the Supremacy Clause of the Constitution that provides that federal law is the supreme law of the land, which no state can negate.”
There is no picking and choosing. Please read the Supremacy Clause before making ignorant assumptions about it. It states that the Constitution and laws made by the Congress IN PURSUANCE OF the Constitution are the supreme law of the land.
The voters of Oklahoma are about to make a clear statement that we hold the compulsory participation of individuals and businesses in any health care system to be a grievous violation of the enumerated and limited powers we have entrusted to the Congress. In doing so, we aren’t picking and choosing between legitimate federal laws. We are rejecting and denying to comply with an obviously unconstitutional attempt by Congress to exercise power restricting our liberty in a way that the people of this country never authorized them to do.
It is concerning to me that a representative in the Oklahoma Legislature, regardless of political party or beliefs, has such a poor understanding of federalism. The very nature of federalism demands that the members of a federal system be wholly independent in all areas in which they (and ultimately, their citizens) have not granted the federal government power. The federal government cannot unilaterally decide that its actions are proper and legal. That is known as nationalism, not federalism.
Come on Oklahoma – let’s stop electing these dummies. Granted, Kiesel is a lawyer, and in this article he is thinking like a lawyer. I have had this argument with a few lawyers and they all posses the same inability to think outside of the conventional federally-blessed legal procedural thinking. In relations between sovereign entities, things are not as simple as “take it to court.” The US is sovereign, the state of Oklahoma is sovereign. Things get messy.
I would advise Rep. Kiesel to read Thomas Jefferson’s 1798 Kentucky Resolutions. Then we can talk about how supposedly absurd nullification/interposition are.
I would advise you, Ethan, to study Constitutional law and the past 100 years of Supreme Court decisions on the subjects involved in a possible challenge of the bill. The underlying arguments against the bill have been decided time and time again in a manner that supports the federal government’s ability to enact legislation of this type. There is no precedent for allowing states to “opt out” of federal legislation when it is in the federal government’s power to enact such legislation.
I understand your frustration with the health care reform. I really do. However, an attempt to pass a State Question which will allow Oklahoma to “opt out” of the bill is misguided and a waste of resources.
Regardless of the exact language of this State Question, ‘No’ votes will be interpreted as in favor of the health care law and ‘Yes’ votes will be interpreted as in opposition to the health care law. This Congress, supposedly deriving its power from the consent of the ‘governed,’ in no way considered the will of the ‘governed’ when passing the law. This Question is the best opportunity that citizens have had to make their voices heard on the issue.