I suppose it says something about this blogger’s ego that my first thought when I saw David Meeks’s prefiled HB 1053, was Meeks had noticed that I wasn’t posting much of late and felt that he should give me something to write about. I mean, it’s either that or Meeks just isn’t very bright, so to avoid saying anything bad about Davey, we’ll go with the explanation that is all about me.
ANYWAY, Meeks’s bill is entitled “An Act To Ensure Freedom Of Choice In Health Care For All Arkansans; To Prevent Involuntary Enrollments In Health Care Insurance Programs; And For Other Purposes.” In pertinent part, this bill provides that
(c) A law or rule shall not compel, directly or indirectly, an individual, an employer, or a health care provider to participate in any health care system.
It is designed, of course, to thwart the insurance mandate contained in the Patient Protection and Affordable Care Act (“healthcare reform bill”). While Meeks’s abject fear of the healthcare reform bill is well documented — See, e.g., here, here1, and here — his proposing such a blatant unconstitutional law is still a little surprising. Or at least it would be surprising if Meeks had even the slightest clue about such things.
Instead, Tolbert reports that, when Meeks was asked whether this law would pass constitutional muster, the lawmaker-elect replied, “Yes, I believe it can.” Well if noted constitutional law scholar David Meeks thinks the bill can stand up to a constitutional challenge, that pretty much seals it, right?
Actually, no. No, it does not. For one thing, as we all know from City of Boerne v. Flores, 521 U.S. 507 (1997), it is up to the Supreme Court, not legislators, to say whether a law violates the Constitution.2
For another, Article VI, cl. 2 of the United States Consitution (aka the Supremacy Clause) establishes that the Constitution, federal laws made under the powers granted by the Constitution, and treaties entered into by the United States that comport with the Constitution are the supreme law of the land. Importantly, that clause also states that “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” In Edgar v. Mite Corporation, 457 U.S. 624 (1982), the U.S. Supreme court held that a state law is “void to the extent that it actually conflicts with a valid Federal statute.” (We’ll come back to the word “valid” in a minute.)
More recently, in Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000), a more conservative Supreme Court ruled that even state laws that were not diametrically opposed to specific federal laws could nevertheless be unconstitutional under the Supremacy Clause if the state’s statute created “an obstacle to the accomplishment and execution of Congress’s full purposes and objectives” in passing the federal law.
All of which is to say that his proposed law as written would not even come close to surviving a challenge under the Supremacy Clause, assuming that the provision of the health reform bill that requires citizens to have insurance is valid.3 If, however, that provision were found to be violative of Congress’s powers under the U.S. Constitution, then of course Meeks’s bill would be fine, at least from a Supremacy Clause standpoint. At the same time, if the insurance mandate provision was found to be invalid, then there would be no need for Meeks’s proposed law in the first place.
Think about it: David Meeks is proposing a law that, at the moment, is unconstitutional on its face and that could only be constitutional if the very provision he proposed it in response to were removed. This is, quite literally, a worthless bill; either it is constitutionally invalid, or it is completely unnecessary. In no way would it have an impact if it were passed.
Meeks pointed out that this bill is modeled on a similar law that was passed by popular vote in Missouri. However, the part Meeks either leaves out or ignores is that Republicans in Missouri said from the start that Proposition C was a symbolic vote, designed to let the citizens of Missouri voice their displeasure with the healthcare reform bill. No Republican in Missouri seriously suggested that the Missouri law would pass a constitutional test.
I am not sure which is worse, now that I think about it: that David Meeks would propose this bill in the first place and base it on a Missouri law that no one expects to actually have an impact, or that, by saying that he believed the law would stand up to a challenge, he would impliedly admit that he has absolutely no clue as to why this bill would be unconstitutional. Either way, I hope that his fellow representatives are a little sharper when it comes time to discuss this bill.
More importantly, I hope that the people of District 46 realize that their newly elected representative used his first bill to waste everyone’s time.
***
1 I’m giving myself two bonus points for the Princess Bride reference, and there is nothing you can do to stop me.
2 See also Marbury v. Madison, 5 U.S. (1 Cranch) 537 (1803), holding that “[i]t is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. […] If two laws conflict with each other, the Courts must decide on the operation of each.”
3 See, I told you we’d come back to that word.