The Minnesota Senate Judiciary Committee, chaired by Senator Warren Limmer, passed the Freedom in Choice Health Care Act sponsored by Senator David Hann . It now moves on to the Senate Finance Committee and presumably the full Senate. We would expect it to get the support of the GOP lead House, as well.

Kim Crockett had the privilege to testify about the Act, along with Twila Brase from the Citizens Council for Health Freedom, and Greg O’Connor from the Republican Liberty Caucus. (Walter Hudson from MN CD33 Tea Party Patriots submitted written testimony.) Thanks to Twila Brase, dozens of citizens were at the Capitol to hear the testimony which was originally scheduled for the early afternoon. The hearing was moved to the evening–but still there were citizens there to observe the proceedings. Thanks for being there!

What would the Freedom in Choice Health Care Act (also known as Senate File 33 )accomplish?

The Act protects a person’s right to participate— or just as importantly—to not participate in any health care system, and prohibits the government from imposing fines or penalties on that person’s decision.

It also protects the right of individuals to purchase—and the right of doctors to provide—lawful medical services without government fine or penalty. (See Canada where if you interfere with the government’s  monopoly, you may face penalties.)

The statute passed with a minimum of DFL bluster (e.g. citizens have a right to health care and complaints about “free riders”) and will now go to the Senate finance committee, etc. Given the GOP majority, we are confident it will reach Governor Dayton’s desk later in the session and then probably get vetoed (which has political pay-offs for both sides but does not get the job done).

Kim Crockett pointed out the benefits of a constitutional amendment, noting that Arizona has both a statute and a constitutional amendment.

Purpose or goal of the Act if passed by statute:

•  Gives a state standing in the current lawsuits against the federal individual mandate.

•  Allows a state to launch additional, 10th Amendment-based litigation if the current lawsuits fail.

•  Empowers a state attorney general to litigate on behalf of individuals harmed by the mandate in 2014.

Purpose or goal of the Act if passed by constitutional amendment:

•  The three points listed above, PLUS…

•  Will prohibit a Canadian-style, single-payer healthcare plan at the state levelif ObamaCare is upheld.

•  Will prohibit a state-level requirement to purchase health insurance if ObamaCare is repealed. (Like RomeyCare in Massachusettes, Minnesota arguably has the authority to impose a similar state health care program.)

The bottom line, expressed so well by Judge Vinson in the Florida case, is that Congress does not have the authority to force citizens to buy health insurance. The Individual Mandate is simply unconstitutional. If the Supreme Court gets this one wrong, it means that Congress can do anything; there is nothing left of the enumerated, limited powers in Article 1, Section 8  .

Here is Judge Vinson:

‘It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction….(and) that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power”[Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.’

Legal scholars are still sorting out whether Judge Vinson’s ruling amounted to an injunction, thus barring further enactment of Obamacare until the Supreme Court rules.

Here is Ilya Shapiro at CATO on 1/31/2011:

“In discussing whether to issue an injunction – a judicial command to do or refrain from doing something — the judge determined that his declaratory judgment in this context was the same as an injunction.  That is, a federal court saying that a piece of legislation is unconstitutional is effectively the same as a decision mandating the government to act.”

Here is what Judge Vinson said: “Declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as an injunction. . . since it must be presumed that federal officers will adhere to the law as declared by the court.”  [Quoting a D.C. Circuit opinion written by none other than then-Judge Antonin Scalia]

Here is Roger Pilon at CATO on 2/2/2011:

“Obviously, the Obama administration and the states have already begun implementing parts of the law. Yet the Washington Post reports this morning that Wisconsin Attorney GeneralJ.B. Van Hollen, one of the parties to the suit, “issued a stern statement” following the decision:

“This means that, for Wisconsin, the federal health care law is dead,” and his state “was relieved of any obligations or duties” to carry out the statute….

Again, here is Roger Pilon: “Because the issues are complex and unclear, the better outcome would be for the 11th Circuit Court of Appeals to clarify the effect of Judge Vinson’s ruling. And given the manifold implementation uncertainties surrounding the serious constitutional questions, affecting so many people and institutions, private and public, Judge Vinson’s decision should be put on a fast track to the Supreme Court.”

Minnesota lawmakers are free to take the position that an injunction was ordered, but without an Attorney General and Governor to enforce that position, there is little effect.