Opt-out move likely futile, scholars say
BY BARBARA HOBEROCK World Capitol Bureau
Monday, March 29, 2010
3/29/10 at 2:18 PM
OKLAHOMA CITY — Some legal experts say a vote of the people to opt out of federal health care reform would have little effect.
Measures passing through the Legislature to put the issue on the November ballot were hotly debated last week.
"States do not have the power by statute or constitutional amendment to bar application of federal law," said Rick Tepker, associate dean for scholarship and research at the University of Oklahoma College of Law.
Tepker said the U.S. Constitution states that federal law is supreme.
"It is highly irresponsible for legislators to be ignoring a basic principle of the American Constitution, and I think they are doing it entirely for political reasons," Tepker said.
His law school colleague at OU, Joseph Thai, agrees. Thai has served as law clerk to U.S. Supreme Court Justice John Paul Stevens and former Justice Byron White. He has also served as a law clerk to Judge David M. Ebel of the U.S. 10th Circuit Court of Appeals.
"I think they are running up against two centuries of constitutional law," Thai said.
"Even if the ballot measure passes, it would likely be invalidated in federal court."
If the state could legally opt out of federal health care reform, then the argument leads to the state being able to opt out of federal antidiscrimination laws, Thai said.
Likewise, Andrew Spiropoulos, Oklahoma City University School of Law professor, doesn't think the state could opt out. Spiropoulos served as senior counselor for former House Speaker Todd Hiett, R-Kellyville.
But Spiropoulos does believe a lawsuit is worth filing.
Attorney General Drew Edmondson, a Democrat running for governor, is studying the issue.
"My guess is that ultimately, it would not be (successful)," Spiropoulos said.
"But I do think it is a plausible argument that the federal government doesn't have the power under the commerce clause (in the U.S. Constitution) to force someone to engage in a financial transaction they don't want to otherwise engage in."
The federal health care reform package requires the purchase of insurance.
But Tepker and Thai said states that sued would not prevail.
"If the Supreme Court sticks to current doctrine, those lawsuits should fail," Tepker said. "There is always the possibility the Supreme Court will see something new, and I suppose it is possible they might prevail. I think it is unlikely they would do so."
Robert McCampbell, for
mer U.S. attorney for the Western District, thinks a court could find that the federal government doesn't have the power to force Oklahoma to participate.
McCampbell, who has done consulting for the House Republicans, said there is no precedent for this type of expansion of federal power.
"I worry a little about the consequences of even an attempt to opt out in terms of federal matching dollars," Gov. Brad Henry said. "That could be devastating.
"And, it is slippery slope. What's next? Are we going to secede from the union?"
Henry said he believes the federal health care legislation is a step in the right direction.
"I believe everybody would agree that we need to reform the system to make health insurance more affordable," Henry said. "Certainly, the rhetoric on both sides has been over the top."
Senate President Pro Tem Glenn Coffee, R-Oklahoma City, urged Edmondson to file suit, saying the attorney general was stalling.
At least 15 state attorneys general filed suit or are preparing lawsuits against the federal government on constitutional grounds, Coffee said.
"There have been some quotes and interviews in the media by some more liberal law professors saying the state has no standing," Coffee said. "There are a strong number of law professors and constitutional scholars who disagree with that."
World staff writer Randy Krehbiel contributed to this report.
Barbara Hoberock (405) 528-2465
barbara.hoberock@tulsaworld.com
