by Michael F. Cannon, CATO Institute
Unconfirmed reports indicate Ohio officials are considering implementation of an ObamaCare health insurance “exchange.” That would be very interesting if true, because operating an ObamaCare exchange would violate the state’s constitution.
Section 21 of the Ohio Constitution provides:
No federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system…
“Compel” includes the levying of penalties or fines.
In order to operate an exchange, Ohio employees would have to determine eligibility for ObamaCare’s “premium assistance tax credits.” Those tax credits trigger penalties against employers (under the employer mandate) and residents (under the individual mandate). In addition, Ohio employees would have to determine whether employers’ health benefits are “affordable.” A negative determination results in fines against the employer. These are key functions of an exchange.
Ergo, if Ohio passes a law establishing an exchange, then that law would violate the state’s constitution by indirectly compelling employers and individual residents to participate in a health care system. That sort of law seems precisely what Section 21 exists to prevent.
As I explain in a recent column, 13 other states have passed statutes or constitutional amendments (Alabama, Arizona, Georgia, Idaho, Indiana, Kansas, Louisiana, Missouri, Montana, Oklahoma, Tennessee, Utah, and Virginia) that bar state employees from carrying out these essential functions of an ObamaCare exchange.
I was so hoping that section 21 was written and passed a few decades ago so that it wouldn’t be twisted and said to be written as a means of fighting against Obamacare. Still I must say that according to the US constitution and the 10th amendment that any authority not given to the federal government is granted to the people or the individual states. Thus if the state of Ohio’s constitution prohibits someone from being compelled to engage in any healthcare mandate, then the 10th amendment to the US constitution means the federal government has no authority to mandate a federal HC law upon the citizens of Ohio. Page 9http://www.legislature.state.oh.us/constitution.pdf