By: Rob Natelson, Senior Fellow in Constitutional Jurisprudence at the Montana Policy Institute
Some say health care is a “right,” but there is a right far more fundamental. That is the right of choosing your own health care and your own providers, and contracting freely for services without government interference.
In America today, that right is under grave threat. Not only will “ObamaCare” take away many of your choices, but by expanding the system that has fueled huge price increases, it will raise the cost of heath care even more.
What can Montanans do? The U.S. Constitution provides a way we can protect ourselves-if we are willing to use it.
The American Founders wrote into the Constitution checks and balances designed to promote good government and preserve liberty. Everyone knows about the checks between the legislative, executive, and judicial branches. But most of the Founders considered the balance between state and federal governments to be even more important.
Both John Dickinson, one of the greatest Founders, and James Madison (“Father of the Constitution”) spoke of the duty of state officials to push back when the federal government exceeded or abused its power. You can read Madison’s views in Number 46 of the Federalist Papers.
All over America state officials are now responding in ways that come directly from Madison’s playbook.
Many Montana lawmakers are among those responding. But they are being fought tooth and nail by people who either do not understand our Constitution or don’t care very much about you being able to make your own decisions.
Consider what happened to Rep. Gary MacLaren’s House Bill 206. That measure would have permitted Montanans to vote on whether they wanted a state constitutional right to health care freedom. HB 206 was not “nullification,” as some have claimed. It was a reasonable, moderate measure of the kind already adopted by several other states. However, in Montana placing a state constitutional amendment before the people requires approval by a two-thirds of all lawmakers. Although HB 206 received a clear majority, Democrats in the legislature lined up against it for reasons best known to themselves. They denied you the chance to vote for protecting your health care freedom.
But Montanans may be able to vote on a weaker alternative. Rep. MacLaren also is sponsoring HB 609, which would let the people to decide on a law protecting health care choice. HB 609 would not be as strong as HB 206 because a law is not as strong as a constitutional right. But only a majority of lawmakers is necessary to let the people vote on a law. HB 609 already has passed the house and is awaiting action in the senate. If it passes the senate, then it will be on the ballot, because the governor has no power to veto referenda.
As to some other bills, the governor’s position is a concern. He recently issued an amendatory veto on Sen. Art. Wittich’s Senate Bill 125, which would block state officials from joining federal efforts to force us to buy government-approved health insurance. A related measure is SB 224, sponsored by Sen. Jason Priest. It prohibits state bureaucrats from signing us up for ObamaCare without legislative authorization.
Still another good proposal is Rep. Cary Smith’s HB 445, which would allow you to purchase health insurance policies from other states, thereby increasing competition and driving down prices.
Despite what you may have read in the press, none of these proposals constitute “nullification.” Nullification is a declaration that federal law does not apply within the boundaries of a state. Nullification is legally suspect and has a terrible track record. Madison opposed nullification, but favored the kinds of measures that are still alive in the Montana legislature. They exemplify just how the system was supposed to work-checks and balances to promote good government and protect liberty.
Rob Natelson is Senior Fellow in Constitutional Jurisprudence at the Montana Policy Institute in Bozeman. He served on the University of Montana faculty for 23 years, where he taught Constitutional Law, Advanced Constitutional Law, and Constitutional History. He also serves as Senior Fellow in Constitutional Jurisprudence at Colorado’s Independence Institute and Arizona’s Goldwater Institute.
He can be reached at:
67 W. Kagy Blvd., Ste. B
Bozeman, MT 59715