Ready for an old-fashioned Constitutional showdown?
We’re tracking an effort by New Hampshire lawmakers to get the Attorney General to join other states in challenging the constitutionality of last year’s federal health care reform law.
The proposals may or may not amount to anything more than political posturing and a lengthy court battle. But as they play out, they illustrate tension between the states and the federal government, plus a debate within New Hampshire about separation of powers.
the campaign
The next step comes Wednesday when the House meets in full session to vote on — and likely approve — Senate Bill 148, which Republican House leadership has heavily amended.
The Senate version says the attorney general “should, as soon as practicable, join the lawsuit” in federal courts. The House’s amendment orders the AG to do so, saying he “shall, no later than July 1, 2011,” move to join the suit.
The House would also order the executive branch to return more than $600,000 in federal grant money coming to New Hampshire under the Patient Protection and Affordable Care Act. The reason for returning those funds, as stated in the amendment itself, is “for the purpose of reducing the federal budget deficit.”
According to the Congressional Budget Office, after full implementation of the law in 2014, it will save more than $1 trillion in federal spending during the following decade.
You can see the full amendment and original version below.
In his majority “ought to pass” recommendation report for the amended House version, Rep. Andrew Manuse (R-Derry) said SB 148 sends “a clear message that New Hampshire will neither be a willing participant in this health care scheme that will rob consumers of freedom and drive up costs to state and federal taxpayers, nor will it waste federal taxpayer dollars on implementing a law that will likely be invalidated ultimately.”
The crux of the legal battle is the individual mandate provision, of which Manuse said, “No resident of the ‘Live Free or Die’ state should ever be forced to buy health insurance or face a penalty.”
the resistance
Gov. John Lynch will likely veto whichever version reaches his desk. Attorney General Michael Delaney has said any measure to require his office to join the multi-state legal battle (which is being pursued exclusively by Republican governors) is an unconstitutional breach of separation of powers that he will fight in state court.
In her minority report rebuttal, Rep. Donna Schlachman (D-Exeter) said consumers are already benefiting from the law’s provisions now in effect. Those provisions include small business tax credits for offering health care coverage, payments to seniors for Medicare drug prescription coverage, allowing young adults to stay on their parents’ insurance coverage to age 26, and a halt to pre-existing condition restrictions for children.
Beyond its symbolism, she said, “this bill does nothing to improve health care access or affordability for businesses and individuals in New Hampshire.”
the federal case
It’s too soon to know which constitutional, political and policy arguments will prevail. Last week, the U.S. Supreme Court declined a request for an expedited hearing by Virginia’s attorney general. The legal fight will make its way through the federal courts in the coming months.
This Daily Briefing was written by Michael McCord.
>> Wednesday, May 4, full House vote on SB 148, Representative’s Hall at the State House, 10:00 a.m.
Here is the House’s amended version of SB 148:
Amend the title of the bill by replacing it with the following:
AN ACT relative to health insurance coverage, requiring the attorney general to join the lawsuit challenging the Patient Protection and Affordable Care Act, and requiring federal grant moneys received by the state for implementation of the Patient Protection and Affordable Care Act to be returned to the federal government.
Amend the bill by replacing all after section 1 with the following:
2 Statement of Findings. The general court finds that:
I. Several federal courts have ruled that the Patient Protection and Affordable Care Act is unconstitutional and at least one federal court has ruled the act nonseverable.
II. The New Hampshire insurance department has accepted federal moneys for implementation of a law which is likely to be ruled unconstitutional and therefore is likely to be invalidated.
III. The general court is concerned with the spending of all tax dollars, whether at the state or federal level, when the federal government is running a massive structural deficit.
3 Lawsuit Challenging the Federal Patient Protection and Affordable Care Act. The attorney general shall, no later than July 1, 2011, move to join the state of New Hampshire as a plaintiff in the lawsuit pending in federal court captioned State of Florida et al. v. United States Department of Health and Human Services et al.
4 Funds From Grants Returned to Department of Health and Human Services. The state treasurer shall return any grant funds received by the insurance department for purposes of implementing the Patient Protection and Affordable Care Act to the federal Department of Health and Human Services for the purpose of reducing the federal budget deficit.
5 Effective Date.
I. Section 1 of this act shall take effect July 1, 2011.
II. The remainder of this act shall take effect upon its passage.
AMENDED ANALYSIS This bill:
I. Provides that a resident of New Hampshire shall not be required to obtain, or be assessed a fee or fine for failure to obtain, health insurance coverage.
II. Requires the attorney general to join the state of New Hampshire as a plaintiff in the lawsuit pending in federal court captioned State of Florida et al. v. United States Department of Health and Human Services et al.
III. Requires certain grant moneys received by the New Hampshire insurance department for the implementation of the Patient Protection and Affordable Care Act to be returned to the federal government.
Original version of SB 148:
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eleven
AN ACT relative to health insurance coverage and declaring that the attorney general should join the lawsuit challenging the Patient Protection and Affordable Care Act.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Section; Insurance Department; Health Insurance Coverage. Amend RSA 400-A by inserting after section 14 the following new section:
400-A:14-a Health Insurance Coverage. No resident of this state, regardless of whether he or she has or is eligible for health insurance coverage under any policy or program provided by or through his or her employer, or a plan sponsored by the state or the federal government, shall be required to obtain or maintain a policy of individual insurance coverage except as required by a court or the department of health and human services where an individual is named a party in a judicial or administrative proceeding. No provision of this title shall render a resident of this state liable for any penalty, assessment, fee, or fine as a result of his or her failure to procure or obtain health insurance coverage. This section shall not apply to individuals voluntarily applying for coverage under a state-administered program pursuant to Title XIX or Title XXI of the Social Security Act. This section shall not apply to students being required by an institution of higher education to obtain and maintain health insurance as a condition of enrollment. Nothing in this section shall impair the rights of persons to privately contract for health insurance for family members or former family members.
2 Lawsuit Challenging the Federal Patient Protection and Affordable Care Act. The attorney general should, as soon as practicable, join the lawsuit (State of Florida et al. v. United States Department of Health and Human Services et al.) challenging the constitutionality of the Patient Protection and Affordable Care Act.
3 Effective Date.
I. Section 1 of this act shall take effect July 1, 2011.
II. The remainder of this act shall take effect upon its passage.