Introduced in Nebraska last week is LB219, the Health Care Freedom Act. From the bill text:

(1) No individual, employer, or health care provider shall be compelled directly or indirectly to participate in a health care system.

(2)(a) Any person may make direct payment for a lawful health care service provided to him or her or his or her dependent without the imposition of any fine or penalty. An employer may make direct payment for a lawful health care service provided to an employee or such employee’s dependent without the imposition of any fine or penalty.

The goal? To form a state barrier against health insurance mandates coming from Washington DC.

If passed, this would create a conflict between the federal and state laws – one saying health insurance is required, the other saying that such a requirement is illegal.

The obvious question then – who wins? Those who argue in favor of the feds would generally cite the “supremacy clause” of the constitution – and make the claim (as so often happens in media reports on this issue), that “federal laws always supersedes state law.” But, those who argue in favor of the state, should cite the exact same clause.

Why? Because saying that federal law is “always” supreme under this clause is either done so out of utter incompetence or, well, outright lying. Let’s take a look at Article VI, Clause 2 of the Constitution, the “supremacy clause”

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. [emphasis added]

The key here, then, is quite straightforward. As long as the federal government is exercising powers delegated to it in the constitution (most held in Article I, Section 8), then laws made under those delegated powers are supreme. For everything else, though, state laws are supreme. For more on the supremacy clause, read Professor Brion McClanahan’s essay, “Who’s Supreme? The Supremacy Clause Smackdown.”

In 2010, seven states – Idaho, Utah, Arizona, Oklahoma, Missouri, Louisiana, and Virginia – passed some version of the Health Care Freedom Act. They’re primarily pursuing the issue in federal court, and have had some early success. But, our view is that any society that leaves the fate of its liberty in the hands of 9 unelected, unaccountable, politically-connected lawyers – is in serious trouble.

Or, as people like Thomas Jefferson put it – if the federal government has the exclusive right to judge the extent of its own powers, those powers will continue to grow – regardless of elections, the separation of powers, lawsuits, and other much-touted limits on government power.


CLICK HERE to view the Tenth Amendment Center’s Health Care Freedom Act legislative tracking page

The Tenth Amendment Center has released the Federal Health Care Nullification Act, which directly nullifies the “Patient Protection and Affordable Care Act” on a state level. Click here to learn more about the bill. CLICK HERE to track the Nullification Act in states around the country.

Michael Boldin

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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