- The Washington Times - Sunday, October 3, 2010

DENVER | After taking a beating at the hands of Missouri voters in August, “Obamacare” could be roughed up once again at the ballot box in November.

Following the lead of the successful Missouri initiative, which passed with 71 percent of the vote, Arizonans, Coloradans and Oklahomans will decide this fall whether to approve proposed constitutional amendments that would allow them to opt out of key provisions of President Obama’s signature national health care law.

The three initiatives prohibit the government from forcing individuals to buy health care insurance - a “mandate” that critics say violates the U.S. Constitution - and would allow patients and employers to pay providers directly without penalty. The idea is to protect state residents from “the ongoing takeover of health care by government,” backers of the Colorado campaign say.

There’s just one problem, say opponents of the state ballot initiatives: The entire strategy is “an exercise in futility,” in the words of Oklahoma Gov. Brad Henry, a Democrat. Federal law trumps state law, meaning that the measures are certain to be overturned even if they win 100 percent of the vote.

“No state has the authority to selectively ignore federal laws of its choosing, no matter how much some people may dislike them, and any attempt to do so will be ruled unconstitutional by the courts,” said Mr. Henry, who opposes State Question 756. The only practical outcome of the vote, he added, would be a “costly legal battle.”

“I don’t think it makes sense to waste taxpayers’ money on a legal action we know we will lose, particularly during a historic revenue crisis,” he said.

Jon Caldara, who is spearheading the Amendment 63 campaign in Colorado, said opponents are forgetting about “a pesky little thing called the 10th Amendment,” which reserves to the states “the powers not delegated to the United States by the Constitution.”

“There have been numerous examples to suggest that there are times when state law supplants federal law,” said Mr. Caldara, president of the free-market Independence Institute in Golden. “If federal law always supplanted state law, then we wouldn’t have 20 state attorneys general suing to overturn the federal law.”

That joint lawsuit, challenging the constitutionality of the health care law primarily over the insurance-buying mandate, is proceeding in the courts even as the political fight continues.

Mr. Caldera added that, if opponents truly thought the states and the voters were powerless, then “they wouldn’t have spent so much trying to keep us off the ballot.”

Colorado’s Amendment 63 qualified for the ballot through the signature-gathering process. Oklahoma’s Question 756 and Arizona’s Proposition 106 were referred to the ballot by votes of the state legislatures.

A fourth proposal in Florida was also approved for the ballot by the state Legislature, but the state Supreme Court removed it in August after ruling that the wording was inappropriate.

One factor in the measures’ favor is that Mr. Obama’s health care plan - which won’t be fully implemented for another four years - has yet to catch on with the voters. Polls continue to show that more than 50 percent of respondents oppose the federal health care law, and repealing at least portions of it has become a top Republican Party legislative goal for 2011.

Jennie Bowser, an elections analyst with the National Conference of State Legislatures, said all three proposals would be aided by voter anxiety over the economy and fears about the long-term cost of the health care overhaul.

“The economy is a general theme running through ballot measures this year,” said Ms. Bowser. “I really hesitate to predict outcomes, but Arizona leans conservative with all the controversy and media coverage, I just think it’s likely to pass this fall. Amendment 63 in Colorado is a little harder to predict because Colorado’s purple.”

Even before the president signed the health care legislation this spring, Arizonans were starting to mobilize behind greater individual choice in health care. Two years ago, a nearly identical initiative - Proposition 101 - lost by a nose despite an overwhelmingly Democratic tide.

“In 2008, in a bad year, we lost 50.2 percent to 49.8 percent,” said Dr. Eric Novack, the orthopedic surgeon leading Arizona’s health care choice movement. “Our opposition outspent us 5-to-1. [Gov. Janet] Napolitano was the unofficial spokeswoman for the other side, and we still almost won.”

Ms. Napolitano, a Democrat, now serves as homeland security secretary.

This year, Gov. Jan Brewer, a Republican, has thrown her support behind the measure, saying that a victory would send a message to Washington “that this type of overreaching by the federal government will no longer be tolerated.”

Even though foes of the measures insist the ballot challenges will never stand up in court, they’re still mounting opposition campaigns. The “No on 106” campaign in Arizona is running on the theme that “Proposition 106 endangers your health,” with campaign literature featuring skulls and crossbones.

The principal opponents include teachers and nurses unions, in addition to retirees and public health groups. They argue that the measures will hurt access to health care and will plunge the state into lengthy and expensive legal battles.

They are also redundant, said Dede de Percin, executive director of the Colorado Consumer Health Initiative. She said that the 20-state lawsuit filed by the attorneys general would accomplish the same ends as the ballot measures.

“Amendment 63 will cost taxpayers money by forcing them to pay for the lawsuits that are the goal of the proponents of Amendment 63,” said Ms. de Percin.

Proponents worry that if the lawsuit is successful the federal government may push for state measures based on the Massachusetts’ health care program, which requires state residents to have health insurance and is in many ways the model for Mr. Obama’s national plan.

“We’re taking a proactive measure to make sure that doesn’t happen,” said Mr. Caldara. “This will make health care choice a fundamental right in Colorado, which means Colorado won’t be able to enforce federal mandates. If the feds want to enforce their mandates, they’ll have to do it on their own.”

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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