Lines in the Sand 

Legislature tilts at health care windmills

Gov. C.L. "Butch" Otter stood before members of the press last week in his ceremonial office to sign the (so-called) Idaho Health Freedom Act. House Bill 391 moved through the Legislature this month on strictly party-line votes. With Otter's signature, the bill creates an Idaho statute in symbolic opposition to the federal overhaul of health insurance, which passed on March 21 after a yearlong battle.

The Idaho bill promises Idaho citizens the freedom to buy health services as they like, and rejects any possible federal penalty for not purchasing health insurance. Additionally, it tasks Attorney General Lawrence Wasden with fighting the federal government in court, and provides $100,000 to do so if necessary.

"We're not gonna be in this alone," said Otter. "There's gonna be many other states ... in this with us. I think to protect the people of Idaho, which is one of our first obligations as a government, it's the right thing to do."

Otter was backed by a number of legislators--literally standing behind him at the podium--all of them Republican. With his first public bill signing of the 2010 session, Otter became the first governor in the country to sign such anti-health-care reform legislation.

"How can somebody mandate us, because we're breathing, to buy health insurance?" said retiring Rep. Jim Clark, a Republican from Hayden Lake.

Idaho was propelled onto the national stage the day after the signing, pushing Otter into the spotlight. (U.S. Rep. Mike Simpson got major play as well, hanging off a U.S. Capitol balcony with a "KILL" sign as Congress prepared to vote. Republicans brandishing "THE" and "BILL" signs accompanied Simpson.)

But Otter made Anderson Cooper on CNN, as well as Neil Cavuto on Fox News, telling both that enough states could stand up to the feds to make a Constitutional challenge.

"I tell you what, if you get 36 states, that's a critical mass, that's a Constitutional mass." No record could be found of the phrase "constitutional mass" in the founding documents, but Otter may be referring to the majority of states needed to amend.

Outspoken advocates for health-care overhaul, like David Irwin with the Idaho branch of the AARP, opposed Otter's move.

"This is a classic example of politics coming before patients," said Irwin. "It stands little chance, if any, of standing up in court. $100,000 is not going to go very far when you're fighting a case in the Supreme Court. We don't know how this legislation is going to act with existing federal laws, or how it's going to interact with the health-reform bill, we don't know how it's going to interact with current state laws."

While New Plymouth Republican Sen. Monty Pearce assures Unda' the Rotunda that the Health Freedom Act was home-grown, drafted by Clark and Boise Republican Rep. Lynn Luker, the American Legislative Exchange Council states that the bill is based on model legislation they provide to their members. The D.C. group seeks to "advance the Jeffersonian principles of free markets, limited government, federalism, and individual liberty ..."

"It basically says that people can't be forced into a health-care system," said Christie Herrera, the director of ALEC's health policy arm. "The language is loosely based on a bill that we have, that would prohibit citizens from being fined or jailed for not having health insurance ... The issue is, should I be forced into buying something from a company I don't like, or an industry I don't support?"

Retiring Boise Democratic Sen. Kate Kelly raised concern about the ramifications of the Legislature's decision. During the Senate deliberations on the bill, Kelly distributed an opinion from Deputy Attorney General Karin D. Jones regarding the status of J-1 visa holders under the Idaho Health Freedom Act.

Under the J-1 visa program, foreign visitors working in Idaho are required to carry health insurance. Kelly asked whether attempts to deport those without insurance would require defense by Idaho's attorney general.

Otter referred to state sovereignty during the ceremony, echoing the concerns of his fellow GOP lawmakers. Lawmakers urged the federal government to amend the 10th Amendment, strengthening states' rights, asserted the primacy of English and God in public places and would create a silver medallion, which could be used to pay taxes.

"They're doing this for political reasons. So many of these bills have constitutional flaws, and they pass anyway," said Kelly. "Day after day we're forced to pass these resolutions that may be unconstitutional. The defense is always, 'it's an election year ... the people want this to pass ...' Well, that's not the way we should be legislating."

As for health freedom, the bill does not go into effect until July 1, and it requires that the feds force some unnamed Idaho official to force some unwitting Idaho citizen to buy health insurance before the state sues.

But just one day after the bill passed, Otter was in Park City, Utah, meeting with other Republican governors and discussing a challenge. And Wasden's office was in discussions with other states to decide on litigation, according to spokesman Bob Cooper.

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