Republican Gov. C.L. “Butch” Otter used a ceremony Wednesday afternoon to become the first governor to sign into law a measure requiring the state attorney general to sue the federal government over any such insurance mandates.
There’s similar legislation pending in 37 other states, a point Otter stressed when asked if the bill he signed can succeed, given constitutional law experts are already saying federal laws would supersede those of states in a U.S. District Court fight.
“The ivory tower folks will tell you, ‘No, they’re not going anywhere,’” he told reporters. “But I’ll tell you what, you get 36 states, that’s a critical mass. That’s a constitutional mass.”
The state measures working their ways through statehouses from Missouri to South Carolina reflect a growing frustration with President Obama’s health care overhaul, especially in Republican-dominated regions.
The Democratic president’s proposal would cover some 30 million uninsured people, end insurance practices such as denying coverage to those with pre-existing conditions, require almost all Americans to get coverage by law, and try to slow the cost of medical care nationwide.
Democratic leaders hope to vote on it this weekend.
With Washington closing in on a deal in the monthslong battle over health care overhaul, Republican state lawmakers are stepping up opposition.
Last week, Virginia legislators passed a measure similar to Idaho’s new law, but Otter was the first state chief executive to sign such a bill, according to the American Legislative Exchange Council, which created model legislation for Idaho and other states. The Washington, D.C.,-based nonprofit group promotes limited government.
“Congress is planning to force an unconstitutional mandate on the states,” said Christie Herrera, the group’s health task force director.
Still, David Freeman Engstrom, a constitutional law expert at Stanford University Law School, said all these measures face significant legal hurdles. Freeman said there is the question of whether a state has standing to bring the lawsuit, or if that role is better served by an individual who could show they were harmed by the mandate to buy health insurance.
Idaho’s law faces an even bigger challenge, he said, by setting up a direct conflict with the supremacy clause in the U.S. Constitution.
“That language is clear that federal law is supreme over state law,” said Freeman. “So it really doesn’t matter what a state legislature says on this.”
Otter already warned U.S. House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid in December that Idaho was considering litigation.
He signed the bill during his first public ceremony of the 2010 Legislature.
“What the Idaho Health Freedom Act says is that the citizens of our state won’t be subject to another federal mandate or turn over another part of their life to government control,” Otter said.
Minority Democrats who make up less than a quarter of the Idaho Legislature who opposed the bill called any lawsuits over health care reform frivolous.
Senate Minority Leader Kate Kelly, D-Boise, also complained about the bill’s possible price tag. Those who drafted the new law say enforcement may require an additional Idaho deputy attorney general with an annual salary of $100,000 a year.
Kelly said that was irresponsible when Idaho is grappling with a $200 million budget hole.
“For Democrats in the Legislature, our priority is jobs,” she said. “We’d rather Gov. Otter was holding a signing ceremony for (a jobs package) meant to put Idaho residents back to work.”
At the White House, spokesman Reid Cherlin declined to comment Wednesday night.
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