Can ObamaCare’s insurance mandate survive a court challenge? A Virginia legislator intends to find out

Written by Dan Calabrese Source: Courtesy of Northstar National

Assuming ObamaCare actually becomes law, what happens when its onerous health insurance mandate – complete with the threat of fines and prison time if you don’t buy insurance deemed acceptable by the federal government – is tested?

You file your tax return. You fail to offer proof that you have a policy that puts you in compliance with the law. The IRS tries to penalize you, possibly by garnishing your state tax refund.

If you live in Virginia, you might have the commonwealth in your corner. And that’s not only because the primary sponsor of a bill to protect taxpayers believes they deserve the protection.

It’s also because he’s opening to provoke a test case that could get ObamaCare thrown out by the U.S. Supreme Court.

Bob Marshall, a Republican delegate to the legislature from the city of Manassas, has submitted a bill that reads as follows:

No law shall restrict a person’s natural right and power of contract to secure the blessings of liberty to choose private health care systems or private plans. No law shall interfere with the right of a person or entity to pay for lawful medical services to preserve life or health, nor shall any law impose a penalty, tax, fee, or fine, of any type, to decline or to contract for health care coverage or to participate in any particular health care system or plan, except as required by a court where an individual or entity is a named party in a judicial dispute. Nothing herein shall be construed to expand, limit or otherwise modify any determination of law regarding what constitutes lawful medical services within the Commonwealth.

In other words, the Commonwealth of Virginia will not recognize any law that requires a resident to enter into a health insurance contract not of his or her choosing. In any situation that would require the involvement of the Commonwealth in enforcing such a requirement – and there would surely be many – Virginia won’t play ball. Not only that, but it will go to court to defend its right not to do so.

Marshall makes no bones about the fact that he is proposing this legislation for the purpose of provoking a series of test cases. The premise for his action is that the federal government does not have the constitutional authority to require anyone to buy health insurance. What’s more, he says one of the 60 senators who voted for ObamaCare admitted as much.

“At the end of a 10-minute conversation, he said, ‘You’re probably right that we don’t have the authority to do the mandates, but that’s not my primary concern,’” Marshall said.

Because hey, who cares about a little thing like constitutional authority?

Marshall does.

“An oath is when you swear before God that you will do or won’t do certain things,” Marshall said. “So that’s apparently second fiddle at this point. When you’re so slipshod about the means and the ends, that doesn’t bode well for our democracy.”

Can the bill pass? Marshall is confident it will pass the Republican-controlled House of Delegates, but is less confident about the Senate, which is controlled by Democrats. And with no election scheduled until 2011, there isn’t going to be an opportunity to change that configuration any time soon.

But the seed that’s sown in Virginia may be harvested elsewhere. Marshall said legislators in at least four other states – North Carolina, New York, New Hampshire and Pennsylvania – have contacted him to learn about the bill, and are considering introducing similar bills in their own states.

Somewhere along the line, you have to believe a state is going to step up and refuse to play ball with ObamaCare’s most constitutionally egregious provisions. Whether this ultimately leads to a Supreme Court showdown that could put the whole thing in jeopardy is hard to predict at this point, but at least we can say that federalism and our the system of checks and balances aren’t dead yet.

Granted, the Democrats have filibuster-proof majorities and they control the White House, which means, theoretically, they can do whatever they want. But if they exceed their authority under the Constitution, there are still mechanisms to challenge their power grab. Perhaps Marshall has found the one that will work.

If not, the bet here is that, eventually, someone does.

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