Contact: Daren Bakst
March 01, 2011
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RALEIGH -- The John Locke Foundation, Center for Constitutional Litigation, and a scholar with the libertarian Cato Institute have submitted letters to N.C. Gov. Beverly Perdue that bolster the legal case for a bill protecting North Carolinians from federal government overreach on health care.
The letters specifically target N.C. Attorney General Roy Cooper's Feb. 23 memo arguing that House Bill 2, the North Carolina Health Care Protection Act, is unconstitutional. That bill is designed to exempt North Carolinians from the individual health insurance mandate tied to the March 2010 federal health care reform law. Cooper's memo urges Perdue to veto H.B. 2.
"[Cooper's] concerns are unfounded and therefore do not provide a valid reason for vetoing H.B. 2," according to the letter (PDF link) from Daren Bakst, JLF Director of Legal and Regulatory Studies, and Joseph Coletti, Director of Health and Fiscal Policy Studies.
Bakst and Coletti's letter specifically challenges Cooper's assertions about the potential conflict between state law and the federal Constitution, along with Cooper's prediction that H.B. 2 could threaten state Medicaid funding.
Clint Bolick of the Center for Constitutional Litigation, a program of the Arizona-based Goldwater Institute, also rebuts (PDF link) Cooper's arguments. "House Bill 2 is a version of the Health Care Freedom Act, which we helped draft," Bolick writes. "Different versions of the Act have been adopted as constitutional amendments or statutes in several states. In no state has the constitutionality of the Act been challenged, nor to our knowledge has Medicaid funding been threatened in any state that has enacted the Act."
Ilya Shapiro, Cato Institute senior fellow in constitutional studies, focuses (PDF link) on H.B. 2's protection of two "essential rights." "First, it protects a person's right to participate or not in any health care system and prohibits the government from imposing fines or penalties on that person's decision," Shapiro writes. "Second, it protects the right of individuals to purchase -- and the right of doctors to provide -- lawful medical services without government fine or penalty."
The N.C. House approved H.B. 2 with a 69-49 vote Feb. 22, less than a week after the Senate endorsed the measure 30-18. Lawmakers presented the bill to Perdue Thursday. She has a total of 10 days to decide whether to sign it, veto it, or allow it to become law without her signature.
Perdue had signaled she would allow H.B. 2 to become law without her signature. Then Cooper submitted his memo. In addition to labeling H.B. 2 unconstitutional, Cooper argued the bill "could create other problems for the state," according to the JLF letter.
Cooper's memo argues one piece of H.B. 2 could jeopardize state Medicaid funding by prohibiting the state from assessing a new federally mandated fee designed to help combat Medicaid fraud and abuse.
"H.B. 2 does not prohibit a fee for the purposes of fighting fraud and abuse," Bakst and Coletti counter. "The Attorney General is reading the bill to mean that no fee can ever be imposed on a person who contracts with a public health care system, unrelated to why the fee is being imposed. This ignores the language of the bill."
The JLF experts also tackle Cooper's "incomplete" analysis of the supremacy of federal law over a state law such as H.B. 2. "States often enact laws that conflict with federal laws," he explains. "This by itself does not make the state law unconstitutional."
The attorney general's memo is "100 percent backward" when it suggests the state and its residents must comply with the 2010 federal health care reform law until and unless a court orders otherwise, Bakst and Coletti write. "The state and its residents have every right to not comply with the law until a court orders otherwise. North Carolina does not have to pre-emptively strike down its own laws."
Bolick's letter concludes by addressing the significance of the Feb. 23 memo from Cooper and N.C. Solicitor General Christopher Browning.
"It is troubling that the Attorney General and Solicitor General would conclude in advance that House Bill 2 is unconstitutional," Bolick writes. "Their incomplete analysis of applicable constitutional principles and precedents will serve the State of North Carolina poorly in any future defense of the state's rights under the U.S. Constitution.
"Especially given that two federal courts have invalidated the individual mandate, the question of the constitutionality of House Bill 2 is very much an open question," he adds. Bolick writes there is "no constitutional impediment" to Perdue signing the bill, allowing it to become law without her signature, or enforcing it after enactment.
For more information, please contact Daren Bakst at (919) 828-3876 or email@example.com. To arrange an interview, contact Mitch Kokai at (919) 306-8736 or firstname.lastname@example.org.