Saturday, July 9, 2011

Maxfield Parrish

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Maxfield Parrish

The Dinky Bird, by Maxfield Parrish, an illustration from Poems of Childhood by Eugene Field, 1904. This work exemplifies Parrish's characteristic use of androgynous figures.
Birth name Frederick Parrish
Born July 25, 1870(1870-07-25)
Philadelphia, Pennsylvania
Died March 30, 1966(1966-03-30) (aged 95)
Nationality American
Field Painting
Maxfield Parrish (July 25, 1870 – March 30, 1966) was an American painter and illustrator active in the first half of the twentieth century. He is known for his distinctive saturated hues and idealized neo-classical imagery.



[] Life

Born in Philadelphia, Pennsylvania, he was the son of painter and etcher Stephen Parrish. He began drawing for his own amusement as a child. His given name was Frederick Parrish but he later adopted the maiden name of his paternal grandmother, Maxfield, as his middle name, and later as his professional name. His father was an engraver and landscape artist, and young Parrish's parents encouraged his talent. He attended Haverford College, the Pennsylvania Academy of the Fine Arts, and Drexel Institute of Art. He entered into an artistic career that lasted for more than half a century, and which helped shape the Golden Age of illustration and the future of American visual arts.
He lived his entire life at his New Hampshire home/studio at The Oaks with his wife, who died in 1953, and his mistress and model, Sue Lewin, who survived his death in 1966 at age 95. He was by all accounts a charming and intelligent man whose writings add a great deal to the text in Ludwig's biography of him.

Princess Parizade Bringing Home the Singing Tree from Arabian Nights, 1906, oil on paper
Launched by a commission to illustrate L. Frank Baum's Mother Goose in Prose in 1897, his repertoire included many prestigious projects including Eugene Field's Poems of Childhood (including 8 color plates) (1904) (see illustration) and such traditional works as Arabian Nights (including 12 color plates) (1909). Books illustrated by Parrish, in addition to those that include reproductions of Parrish's work—including A Wonder Book and Tanglewood Tales (including 10 color plates) (1910), The Golden Treasury of Songs and Lyrics (including 8 color plates) (1911) and The Knave of Hearts (including 23 color images) (1925) – are highly sought-after collectors items.
He had numerous commissions from popular magazines in the 1910s and 1920s including Hearst's, Colliers, and Life. He was also a favorite of advertisers, including Wanamaker's, Edison-Mazda Lamps, Fisk Tires, Colgate and Oneida Cutlery. In the 1920s, Parrish turned away from illustration and concentrated on painting for its own sake. Androgynous nudes in fantastical settings were a recurring theme. He continued in this vein for several years, living comfortably off the royalties brought in by the production of posters and calendars featuring his works. An early favorite model was Kitty Owen in the 1920s. Later another favorite, Susan Lewin, posed for many works, and was employed in the Parrish household for many years. Parrish himself posed for many images that featured male—and occasionally female—figures (see Potpourri, 1905).
In 1931, he declared to the Associated Press, "I'm done with girls on rocks", and opted instead to focus on landscapes. Though never as popular as his earlier works, he profited from them. He would often build models of the landscapes he wished to paint, using various lighting setups before deciding on a preferred view, which he would photograph as a basis for the painting (see for example, The Millpond). He lived in Plainfield, New Hampshire, near the Cornish Art Colony, and painted until he was 91 years old. He was also an avid machinist.

[] Technique

A fantastical Parrish illustration titled Cadmus Sowing the Dragon's Teeth, which appeared in Collier's in 1908 and A Wonder Book and Tanglewood Tales, by Nathaniel Hawthorne.
Parrish's art features dazzlingly luminous colors; the color Parrish blue was named in acknowledgement. He achieved the results by means of a technique called glazing where bright layers of oil color separated by varnish are applied alternately over a base rendering (Parrish usually used a blue and white monochromatic underpainting).
He would build up the depth in his paintings by photographing, enlarging, projecting and tracing half- or full-size objects or figures. Parrish then cut out and placed the images on his canvas, covering them with thick, but clear, layers of glaze. The result is realism of elegiac vivacity. His work achieves a unique three-dimensional appearance, which does not translate well to coffee table books.
The outer proportions and internal divisions of Parrish's compositions were carefully calculated in accordance with geometric principles such as root rectangles and the golden ratio. In this Parrish was influenced by Jay Hambidge's theory of Dynamic Symmetry.[1]
Parrish devised many innovative techniques which no other major artist has successfully copied. A technique which Parrish used frequently involved creating a large piece of cloth with a geometric pattern in stark black-and-white (such as alternate black and white squares, or a regular pattern of black circles on a white background). A human model (often Parrish himself) would then pose for a photograph with this cloth draped naturally on his or her body in a manner which intentionally distorted the pattern. Parrish would develop a transparency of the photo, then project this onto the canvas of his current work in progress. Using black graphite on the white canvas, Parrish would painstakingly trace and fill in all the black portions of the projected photo. The result was astonishing: in the finished painting, a human figure would be seen wearing a distinctive geometrically-patterned cloth which draped realistically and accurately.

[] Influence

Parrish's work defies categorization since he was part of no traditional movement or school, and developed an original and individual style. However, his work has been highly influential.
The Elton John album Caribou has a Parrish background. The Moody Blues album The Present uses a variation of the Parrish painting Daybreak for its cover. In 1984, Dali's Car, the British New Wave project of Peter Murphy and Mick Karn, used Daybreak as the cover art of their only album, The Waking Hour. The Irish musician Enya has been inspired by the works of Parrish. The cover art of her 1995 album The Memory of Trees is based on his painting The Young King of the Black Isles [1]. A number of her music videos include Parrish imagery including Caribbean Blue. In the 1995 music video "You Are Not Alone", Michael Jackson and his then wife Lisa Marie Presley appear semi-nude in emulation of Daybreak.
The cover of the 1985 Bloom County cartoon collection Penguin Dreams and Stranger Things comprises elements of Daybreak, The Garden of Allah, and The Lute Players.
The poster for The Princess Bride was inspired by one his works.
Kurt Vonnegut's work The Sirens of Titan alludes to "Maxfield Parrish light" coming from treetops.
In 2001, Parrish was featured in a U.S. Post Office commemorative stamp series honoring American illustrators, including Rockwell Kent, Norman Rockwell, Frederic Remington, and 16 others.
The Metropolitan Museum of Art in New York, along with many other museums, has samples of his work. The San Diego Museum of Art toured a collection of his work in 2005. The National Museum of American Illustration claims the largest body of his oeuvre in any collection, with sixty-nine works by Parrish. Some of his works are located at the Hood Museum of Art (Hanover, New Hampshire) and the Cornish Colony Art Museum (Windsor, Vermont).

[] Family

His second son Maxfield Parrish Jr. is known for his important contribution to the development of the first self-developing camera at Dr. Edwin H. Land's Polaroid Corporation. He also collaborated with his cousin, inventor John Haven Emerson, in an important patent lawsuit involving iron lungs.
Maxfield Parrish's third son, Stephen Parrish II, worked for Pan American as a mechanic. His daughter Jean Parrish was a noted artist in her own right. She died in 2004. With her death, there are no living children of Maxfield Parrish. There are seven grandchildren, six great grandchildren, and several great great grandchildren as of 2007.

[] Notes

  1. ^ Cutler, Parrish & Cutler 1995, p. 2.

[] References

  • Cutler, Laurence S.; Parrish, M.; & Cutler, J. G. Maxfield Parrish: A retrospective. San Francisco: Pomegranate Artbooks, 1995. ISBN 0876545991
  • Ludwig, Coy. Maxfield Parrish. New York: Watson Guptill, 1973

[] Further reading

[] External links

This page was last modified on 22 December 2010 at 12:44.

Friday, July 8, 2011

Fox News announces new show to replace Glenn Beck’s primetime spot

Fox News announces new show to replace Glenn Beck’s primetime spot

Dar July 01, 2011
It would seem Glenn Beck did the work of five people on his popular Fox News show.
The fourth most-watched primetime cable channel announced that its new ensemble show, “The Five,” will replace Beck’s popular program after the final episode airs on Thursday. (Lesson from Halperin’s MSNBC suspension: Don’t trash Obama)

The ensemble will include Fox stalwarts like Juan Williams, Dana Perino and Andrew Napolitano, as well as Bob Beckel and Monica Crowley. Greg Gutfeld, who hosts the late-night cult-hit Red Eye, is also part of the team. The “roundtable ensemble of five rotating FOX personalities … will discuss, debate and debunk the hot stories, controversies and issues of the day,” said Fox.

“The Five” is replacing Glenn Beck at the 5pm slot as the media firebrand parts ways with the company. Beck is moving to his own Internet channel.

Beck was one of Fox’s biggest attractions, with an average October viewership of about 2.9 million, according to Business Insider. Recently, however, his ratings dropped somewhat, down to an average of 1.8 million viewers.
Fox said “The Five” will be serve as the weekday replacement, at least for the summer.

Thursday, July 7, 2011, the place for conservative videos

Brooks' Vicious, Anti-GOP 'Mother of All No-Brainers' Column Gets Mother of All Corrections

Observer effect

Uncertainty principle

Conservatively Speaking

Questions for William F. Buckley

Conservatively Speaking

QWhen you founded National Review in 1955, being a high-IQ conservative was a lonely job in America. But now that you are finally leaving the magazine, neoconservatives are running the country. What do you make of them?
I think those I know, which is most of them, are bright, informed and idealistic, but that they simply overrate the reach of U.S. power and influence.
Yes, their ambitions in Iraq seem to be leading to their self-destruction.
Neocons would suffer a great blow, conceivably mortal, if Bush were defeated because of Iraq.
What do you think was our greatest mistake in the Iraq invasion?
Undertaking as a single venture the deposition of Saddam, which we were uniquely able to do, and the reconstruction of Iraq, which could have been done by a U.N. combine.
Is there anything the Republican Party can do to regain its authority and luster?
It must abide by principles, salient among which at this moment is to pass the constitutional amendment to protect marriage.
Why do you oppose gay marriage?
It is extraconstitutional, marriage being a union between opposite sexes usually intending procreation.
Do you have any gay friends?
I once said, commenting on the revised estimate of the number of gays in the U.S. from Kinsey's 10 percent to the corrected figure, ''If there are only 2.5 percent gays in America, I know them all.''
You have made so many offensive comments over the years. Do you regret any of them?
I regret all spontaneous exchanges, because they aren't as concise as you can make them deliberately. Charles de Gaulle used to memorize replies to anticipated questions from the press.
It's not fair to blame the press. Some of your most inflammatory comments have been made in your essays and columns. In the 50's, you famously claimed that whites were culturally superior to African-Americans.
The point I made about white cultural supremacy was sociological. It reflected, in a different but complementary context, the postulates of the National Association for the Advancement of Colored People.
What are you talking about?
The call for the ''advancement'' of colored people presupposes they are behind. Which they were, in 1958, by any standards of measurement.
Do you regret saying that patients with AIDS should be tattooed on their backsides to identify them to potential bedmates?
If the protocol had been accepted, many who caught the infection unguardedly would be alive. Probably over a million.
You seem indifferent to suffering. Have you ever suffered yourself?
I do not advertise adversity and would certainly not talk about visits with psychiatrists or proctologists.
How is your health?
Infirm. Though nothing either terminal or unique.
Your autobiography, ''Miles Gone By,'' comes out this week, and I wonder how you would compare it to Bill Clinton's memoir.
They are incomparable.
Will you read his?
No. There isn't much point, as far as I can tell from the reviews I've read and promotions I've seen, to protracting the search for the real Clinton.
Have you ever cheated on your taxes?
I suppose so. It's impossible not to cheat on your taxes.
How much should one pay in taxes?
As much, but not more, than your neighbors pay.
Are there any pop musicians you admire?
Yes, a lot. I just don't want to listen to them.
Is your son, Christopher, who is a writer and has just been named as one of the trustees of National Review, as conservative as you are?
Probably not, but I think it would be rude of me to inquire.
Must you be so clever at all times?
I haven't practiced the alternative.
Why are conservative writers generally wittier than liberal writers?
I'm not sure that's true. Karl Marx was a gas, they say.

Wednesday, July 6, 2011

State Legislation and Actions Challenging Certain Health Reforms, 2011

National Conference of State Legislatures - The Forum for America's Ideas
Issues & Research » Health » State Legislation & Actions Challenging Certain Health Reforms, 2011 (State Activity)
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State Legislation and Actions Challenging Certain Health Reforms, 2011 


Related NCSL Resource Pages

Updated: June 29, 2011 - subject to additions 
by: Richard Cauchi, Program Director, NCSL Health Program
In response to the federal health reform law, now known as the Affordable Care Act (ACA), and separate state reform  initiatives, some members of at least 43 state legislatures have proposed legislation to limit, alter or oppose selected state or federal actions.  In general many of the opposing measures, in 2010 and 2011:
  • Focus on not permitting, implementing or enforcing mandates (federal or state) that would require purchase of insurance by individuals or by employers and impose fines or penalties for those who fail to do so. 
  • Seek to keep in-state health insurance optional, and instead allow people to purchase any type of health services or coverage they may choose.  
  • Contradict, some would say challenge, policy features contained in the 2010 federal law.
The language varies from state to state and includes statutes and constitutional amendments, as well as binding and non-binding state resolutions.  For 2011, there are several new approaches:
  • Several states are considering bills that would prohibit state agencies or officials from applying for federal grants or using state resources to implement provisions of the Affordable Care Act, unless authorized to do so by adopted state legislation.
  • 12 states considered measures to create an "Interstate Freedom Compact," joining forces across state lines to coordinate or enforce opposition. For information, see NCSL article: Some States Pursue Health Compact.
  • Several states are considering bills that propose the power of "nullification", seeking to label the federal law "null and void" within the state boundaries.
The State Legislative Results as of June 2011: During the past two years:
  • A total of 16 states have passed biinding legislation opposing elements of health reform: New item
  • Voters in two of those states approved constitutional amendments, in 2010 (Arizona and Oklahoma).
  • In 2011 two state legislatures have enacted and authorized a proposed constitutional amendment requiring voter decisions in 2012 (Alabama, Wyoming); and one (Montana) will ask voters to approved or disappprove an enacted statute.
  • Nine state legislatures have adopted some type of non-binding resolution or memorial. 
The maps below, for 2010 and for 2011, provide a snapshot of these actions.  The previous sessions' 2009-2010 results, including eight states with binding measures passed and 30 states with failed legislation, are summarized in Section 3 below and in a separate archive report.

Table 1:
2011 Summary of Proposed State Legislation & Resolutions
New item

 As of June 20, a total of 43 states had at least 200 measures filed, opposing elements of health reform or proposing alternative policies, including:
    States with Proposals: Total # States  States              (Bold indicates examples of 2011 final passage or adopted)
 State constitutional amendments  23  AL, FL, GA, IN, IA, KS, KY, MD,  MS, MO, MT, NJ, NY, ND, OH, PA, SC, TN, TX, WA, WV, WI, WY.
 Bills to enact state statutes  37  AZ, AR, CO, DE, FLGA, HI, ID, IL, IN, IA, KS, KY, LA, ME, MI, MN, MO, MT, NE, NV, NH, NM, NY, NC, ND, OH, OK, OR, PA, RI, SD, TN, TX, WA, WV, WY.
 Advisory or non-binding resolutions  18  AR, CO, IL, IN, IA, KS, KY, MS, MO, MT, NE, NH, NJ, NM, ND, RI,  SD, TX.
    Specific Opposition Provisions:   (Wording and enforceability varies among bills)
 Block state agency implementation
unless approved by the legislature
 10  AR, GA, ID, IL, IN, MO, MT, NH, OH, TX
 Interstate Health Care Freedom Compacts  13  AZ, CO, GA, IN, LA, MO, MT, NM, ND, OK, TN, TX, WA
 Nullification/ state sovereignty bills: some
seek criminal penalties for federal
or state enforcement of ACA
 11  ID, IN,  ME, MO, MT, NE, ND, OK, OR, TX, WY
 Details by state are available from NCSL's Health Reform 2011 State Legislative Tracking Database. This online feature, launched in mid-March, includes latest listings with individual bill summaries and status for about 800 health reform-related measures filed for 2011 legislative sessions.  
>> Select "Challenging/Alternatives" for an updated state-by-state listing on this topic.  New item

2011 Highlights of Completed Legislative Actions 

Signed Laws and Binding Resolutions for Ballot Questions

Alabama - H 60, passed House and Senate; became law without governor's signature, June 9, 2011.  Would oppose elements of federal health reform, providing by constitutional amendment that residents may provide for their own health care, and that "a law or rule shall not compel any person, employer, or health care provider to participate in any health care system."  This amendment requires voter approval or disapproval in November 2012.New item
Florida - H 1193, passed House and Senate; signed by the governor as Chapter No. 2011-126, June 2, 2011.  By state statute,  prohibits a person from being compelled to purchase health insurance except under specified conditions including dangerous occupation, voluntary enrollment in public benefits or contracts betwwen private parties.
Florida - S 2, passed Senate and House; sent to the secretary of state, 5/4/2011. Joint resolution proposes a State Constitutional amendment to prohibit laws or rules from compelling any person, employer, or health care provider to participate in any health care system, permit any person or employer to purchase lawful health care services directly from health care provider, or permit health care provider to accept direct payment from person or employer for lawful health care services. This amendment requires voter approval or disapproval in November 2012.New item
Georgia H 461, passed House and Senate; signed by the governor as Act 10, April 20, 2011.  Adopts the interstate Health Care Compact; provides for member state control over personal health care decisions; vests regulatory authority to the states; provides that member states resolve by the adoption into law provisions of the Health Care Compact to define health care as including an individual or group plan that provides or pays the cost of health care, services, or supplies; provides for the right to federal monies.
Indiana S 461, passed Senate and House; signed by the governor as Public Law No. 160-2011, May 12, 2011.  Provides by statute that "a resident of Indiana may not be required to purchase coverage under a health plan. A resident may delegate to the resident's employer the resident's authority to purchase or decline to purchase coverage under a health plan."   Also authorizes consumer protections, rate review and rescissions compatible with the ACA.  Note: Other provisions restricting agencies from implementing ACA provisions were deleted from the final enacted bill.
Kansas - H 2182, passed House and Senate; signed by the governor May 25, 2011.  Opposes specific provisions of federal health reform, providing (in Sec. 7) by state statute that "The government shall not interfere with a resident's right to purchase or refuse to purchase health insurance." Also provides that residents, employers and health providers "shall not be required to pay penalties or fines" for direct payment without using health insurance; the "government shall not enact a law" that "would impose a form of punishment for exercising these rights." Effective date is July 1, 2011.
Montana - S 125, passed Senate and House; governor's amendments rejected; signed by the governor as Chapter 402, May 13, 2011.  Opposes elements of federal health reform, providing that by state law state agencies "may not implement or enforce in any way the provisions" or any federal regulation or policy implementing federal health reform "that relates to the requirement for individuals to purchase health insurance and maintain minimum essential health insurance coverage." Bars public employers or state employees from implementing or enforcing participation in the individual mandate to purchase health insurance.
Montana - S 418, passed House and Senate; enacted as Chapter 310 and sent to the Secretary of State, May 4, 2011.  Would prohibit, by state statute, the federal and state government from mandating the purchase of health insurance coverage; would prohibit imposing penalties related to health insurance decisions. The act will be submitted by referendum to voters for approval or disapproval in the November 2012 state election.
North DakotaH 1165 was enacted and signed by the governor, April 4, 2011; providing by state law that a resident is not required to have a policy of individual health coverage, and would not be "liable for any penalty, assessment, fee, or fine."  Applies regardless of whether the resident has or is eligible for health insurance coverage under a policy, through an employer or under a plan administered by the state or federal government. Continues an exception if health coverage is required by a court or by the state Department of Human Services through a court or administrative proceeding.
North Dakota - S 2309 was enacted and signed by the governor, April 27.  Using parts of  model language invoking "nullification," establishes by statute that, "The legislative assembly declares that the federal laws known as (ACA) likely are not authorized by the United States Constitution and may violate its true meaning and intent as given by the founders and ratifiers." ... no provision "may interfere with an individual’s choice of a medical or insurance provider except as otherwise provided by the laws of this state."
Oklahoma - S 722 was enacted and signed by the governor, May 18, 2011.  Adopts the interstate Health Care Compact; provides for member state control over personal health care decisions; vests regulatory authority to the states; provides that member states resolve by the adoption into law provisions of the Health Care Compact to define health care as including an individual or group plan that provides or pays the cost of health care, services, or supplies.
Tennessee - S 79 was enacted and signed by the governor as Chapter 9, March 18, 2011.  A statute declaring it state public policy that every person within the state "shall be free to choose or to decline to choose any mode of securing health care services without penalty or threat of penalty;" it requires that no state or local public official, employee, or agent "shall act to impose, collect, enforce, or effectuate any penalty in this state."
Wyoming - SJR 2, a proposed constitutional amendment, states that residents have the right to make their own health care decisions, while "any person may pay, and a health care provider may accept, direct payment for health care without imposition of penalties or fines for doing so." Also provides that the state "shall act to preserve these rights from undue governmental infringement." Approved by both House and Senate by a 2/3rds vote; governor's signature not required; scheduled to appear on the November 6, 2012 ballot for voter approval or disapproval by majority vote.

Enacted by Legislatures and Sent to Governors

Missouri - H 45, passed House and Senate; sent to the governor, 5/26/2011. Would provide that "any federal mandate implemented by the state shall be subject to statutory authorization of the general assembly." Would create a new $20,000 employer tax deduction for each new full-time job created with an annual salary of at least the average annual county wage if the small business also offers new employee health insurance and pays at least 50% of the health insurance premiums of all full-time employees who opt into the offered plan. Any new proposed rule must "Certify that the rule does not have an adverse impact on, or must exempt small businesses with fewer than fifty full- or part-time employees."
Missouri - H 423, passed House and Senate; sent to the governor, 5/26/2011. Would establish the interstate Health Care Compact, which would pledge member states to act jointly to oppose certain elements within health reform.
New Hampshire - S 148, passed Senate and House; sent to governor, 6/22/2011.  Would provide that a resident of New Hampshire shall not be required to obtain, or be assessed a fee or fine for failure to obtain, health insurance coverage.New item
New Hampshire - H 601, Passed House and Senate; in conference comm., 6/8/2011.  Would require that before establishing standards for enforcing the provisions of the federal Affordable Care Act, the insurance commissioner "shall obtain approval from the proposed N.H. legislature's Health Insurance Reform Oversight Committee. The provision would apply "to any state official or agency that seeks to enforce the insurance provisions of the Act."New item
New Hampshire - S 162, passed Senate and House; in conference comm., 6/8/2011.   Would clarify the intent of the 2010 state law regarding the implementation of federal insurance reform and removing the repeal of the law authorizing the insurance commissioner to implement insurance reforms required under federal law. Also would require the insurance commissioner to obtain approval from the legislature and all other state agencies before implementing any federal health care reform changes.New item
Texas - SB 7, passed Senate, passed House 6/27/2011; sent to governor 6/27/2011.  State reform bill; includes an interstate  health care compact, which would allow Texas to partner with other states to ask the federal government for control — both fiscal and governmental — over Medicare, Medicaid and commercial coverage; also directs state officials to seek a waiver from Washington to operate Medicaid with a federal block grant.New item

Non-Binding Resolutions, Adopted 2011

Colorado - HR 1010, Adopted non-binding House-only resolution, citing the 10th Amendment, requests the U.S. Congress to repeal the individual mandate required by PPACA; also strongly encourages Congress to "recognize individual states' efforts to reform health care by grandfathering any state laws, regulations, or practices intended to contain costs, improve quality, increase consumerism, or otherwise implement health system reform concepts."
Missouri - SR 27, Adopted non-binding Senate-only resolution calls on the state Attorney General to file an independent lawsuit or join 20 state attorneys general in their lawsuit challenging the constitutionality of the federal health care reform legislation, including to "aggressively defend the validity of Proposition C as voted on by the people of Missouri in the 2010 Missouri General Election."
New Hampshire - SR 9, Adopted Senate-only resolution, requests an opinion of the state Supreme Court justices concerning the constitutionality of H 89, a legislative measure requiring the attorney general to join the lawsuit challenging the Affordable Care Act.
North Dakota - HCR 3016, Adopted non-binding concurrent resolution, urges the U.S. Congress to repeal the Patient Protection and Affordable Care Act. Adopted by the House and Senate, April 18, 2011.
South Dakota - HCR 1004,  Adopted non-binding resolution, opposes elements of the Affordable Care Act, declaring that the "Legislature finds that in the absence of such specific (constitutional) authority," and in conjunction with "powers retained by the people and the states pursuant to the ninth and tenth amendments, all such federal legislation is inherently unconstitutional. Adopted by House 42y-26n; adopted by Senate 28y-5n.

Passed but Vetoed by Governors

Arizona - S 1088, passed House and Senate; vetoed by governor, May 28, 2011. Would oppose any state role in compulsory participation in a health care system or purchase of health insurance; would prohibit any government official from enforcing prohibitions on purchase or sale of health insurance in private health care systems otherwise authorized by the laws of the state; would affirm a right to direct payment or purchase of lawful health care services; would prohibit threats of penalties, fines, taxes, salaries, wage withholding, surcharges or fees to punish or discourage the exercise of such right. Also would establish an Interstate Health Freedom Compact, to unify states opposing the ACA.
Arizona -
S 1592, passed Senate and House; vetoed by governor, 4/18/2011. Would authorize the Governor to enter into the "Interstate Health Care Freedom Compact," intended to guarantee the right and freedom of residents to pay or not to pay directly for health care services and to participate or not to participate in health plans and health systems. Compacts would coordinate across state lines to enforce "health care freedom criminal laws" which seek to make it a crime to interfere with residents' health services, specified above. Also would create a "Interstate Advisory Health Care Commission" with representatives from each member state. [See Governor Brewer's veto message, citing state separation of powers and added fiscal burden.]
Idaho - H 298,  passed House and Senate; vetoed by governor, 4/20/2011.  Would have provided that no person within the State shall be compelled to participate in a government health insurance program not authorized by the State; provides that the  Affordable Care Act shall not be enforced, administered or enacted by the State and no department, agency or political subdivision shall accept or expend moneys related to the implementation of discretionary provisions of the Act, such as exchanges and insurance consumer protections. [See Governor Otter’s executive order of April 20, which includes similar restrictions on the state accepting funds or involvement.]
Minnesota - S 760, passed Senate and House; vetoed by governor, May 24, 2011.  Would have opposed selected provisions of the ACA, by declaring that the public policy of the state "is that every person within the state of Minnesota is and shall be free to choose or decline to choose any mode of securing health care services without penalty or threat of penalty." Also would provide that no state official or empoyee "shall act to impose, collect, enforce, or effectuate any penalty" related to ACA mandates for coverage.
Montana - H 526, passed Senate and House; vetoed by governor, 5/12/2011.  Would provide for an "Interstate Health Care Freedom Compact;" intended to guarantee the right and freedom of residents to pay or not to pay directly for health care services and to participate or not to participate in health plans and health systems. Compacts would coordinate across state lines. Would create advisory representatives from each state and require congressional approval.
- S 224, passed Senate and House; vetoed by governor, 4/21/2011.   Would require legislative approval for any grant application, expenditure or implementation of the federal Affordable Care Act.
Montana - S 228,  passed Senate and House; vetoed by governor, 4/13/2011. Would prohibit the creation of a state-based health insurance exchange.
North Carolina - H 2, passed House and Senates; vetoed by governer, 3/5/2011; veto override failed in House 3/9/2011.  Would oppose elements of federal health reform, providing by state law that "no law or rule shall compel a person" to provide for health care services or medical treatment for that person or contract with, or enroll in, a public or private health care system or health insurance plan as a condition of receiving state economic aid.
Texas - H 335, passed House and Senate; sent to the governor, 5/30/2011; vetoed by governor 6/17/2011.  Would provide that a state agency may not implement requirements for mandated provisions of federal health care reform laws unless the agency submits a report of expenses incurred.  Relates to required purchase of health insurance by a person or employer, penalties imposed for failure of employers to provide such insurance, expanded eligibility for the state Medicaid program or state child health plan program, mandates and new health insurance programs.New item

Post-Election 2010 action

Florida - S 4a. In an unusual mid-November special session, the House and Senate adopted a non-binding resolution that  urges the U.S. Congress to amend Medicaid law in order to "reestablish a fair and prudent federal-state partnership" that allows each state "the freedom to craft a Medicaid program that meets the needs of its residents" without mandatory expansion and enables states to provide cost-effective health care services to low-income residents.  Filed, passed and enrolled, 11/16/2010.

Map A:
Add non-binding Colorado House resolution

2011 state map of challenge legislation

Section 2: Major Court Cases, 2011

These actions by executive branch officials and private parties are provided for information only. They are legally separate from state lawmaking but may affect state deliberations:
♦ Florida: Federal District Judge Roger Vinson ruled on January 31, 2011 to strike down the entire healthcare reform law, ruling that the requirement for individuals to purchase insurance is unconstitutional and is too central to making the law function. He said the whole law cannot stand because the law depends on the mandate to work.  Twenty Six state Attorneys General had joined the case as of January 18, 2011.
>  The 11th Circuit Court of Appeals in Atlanta heard the health care lawsuit oral arguments on June 8, 2011.
Article: Appeals court to hear states' case against health care law (USA Today, 6/5/2011);   "Judges Weigh Limits of Health Law’s Powers" (NY Times, 6/9/2011)
The court arguments are now on C-SPAN radio, available online, 6/8/2011.New item
>  On March 10, both parties agreed to request an expedited Appeals Court hearing. [Court details].
>  Judge Vinson on March 3 "stayed" his ruling pending appeal, which means the law as signed remains legally in force, unaffected by the January 31 ruling.
>  February 18, 2011- Replies to Administration's Request for Clarification on the Florida Decision Regarding the ACA -  [Additional case details below]
Virginia's federal district court ruled December 13, 2010 that the individual mandate to purchase insurance is unconstitutional.  In a 42-page opinion issued in Richmond, Va., Judge Henry Hudson wrote that the law’s central requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution.  The ruling does not by itself enjoin or halt any part of the federal law, pending rulings by higher courts. 
Also in Virginia, a private party suit by Liberty University was rejected in another federal district court on November 30; the judge's 54 page ruling upheld the federal law.  The appeal is being heard jointly with the Virginia v Sebelius lawsuit.
> The court heard oral arguments on May 10, 2011 for the two separate but related cases.  "US appeals court questions Obama healthcare lawsuit" news article by Reuters, 5/10/2011 New item
> Audio of May 10 oral arguments in Liberty University v. Geithner here. |  Audio in Virginia v. Sebelius here.
> On April 25, 2011, the U.S. Supreme Court declined to fast-track the Virginia challenge to the healthcare reform law's individual insurance mandate.
> [Text of ruling | Case details, below]
♦  Ohio:  On June 29, The U.S. Sixth Circuit Court of Appeals (in Cincinnati, Ohio) rejected the plaintiffs*' challenge to the minimum individual  health coverage provision.  [full text online].  Judge Jeffrey Sutton delivered the opinion for the court on the point that the plaintiffs facial challenge must be rejected.  The court split three ways, with no majority to completely uphold the mandate under the Commerce Clause. [News article, "Federal appeals court in Cincinnati upholds health overhaul, handing Obama important victory", Washington Post, 6/29/2011]
District of Columbia: U.S. District Judge Gladys Kessler, on February 22 dismissed a lawsuit filed by the evangelical Christian legal group the American Center for Law and Justice on behalf of five Americans who prefer not to purchase health insurance. [case details below]
Michigan:   In the first decision among more than 20 cases filed against the new law, a federal district judge in Detroit, Michigan dismissed one case and ruled in favor of the federal reform law; that decision has been appealed and does not in itself alter the status of the law. [Read news summary of court action]
Additional information and cases are in an appendix and table at the back of this report.

Section 3Summary of 2010 Legislative and Ballot Question Results

November 2 ballot questions.  A focus of attention shifted to the three states with proposed constitutional ballot questions facing voters in Nov. 2, 2010, elections:
  Arizona - passed by voters, 55.4% Yes to 44.7% No [results]
  Colorado - rejected by voters, 53% No to 47% Yes. [article 11/3/10]
  Oklahoma - passed by voters 64.73% Yes to 35.27% No [state results 11/3/10]
State constitutional amendments:  In 30 of the states, the filed measures included a proposed constitutional amendment by ballot question.  In a majority of these states, their constitution includes an additional hurdle for passage--requiring either a "supermajority" of 60 percent or 67 percent for passage, or requiring two affirmative votes in two separate years, such as 2010 and 2011.
Federal constitutional amendment:  Idaho called for adding a U.S. 28th Amendment that Congress shall make no law requiring citizens of the United States to enroll in, participate in or secure health care insurance or to penalize any citizen who declines to purchase or participate in any health care insurance. This was adopted by both Senate and House on March 29, 2010.  Florida adopted a non-binding resolution referencing a federal constitutional amendment process.
Changing state law:  In at least 16 states, proposed bills aimed to amend state law, not the state constitution. These require a simple majority vote and action by the governor; they also can be re-amended or repealed by a future state law. So far in 2010, seven states have enacted such laws. Virginia became the first to enact a new statute section titled, " Health insurance coverage not required."  It became law on March 10, 2010.  Georgia, Idaho, Louisiana, Missouri, Utah and Arizona also each enacted similar statutes.

Map B:
40 States with 2009-2010 Legislation Opposing Certain Health Reforms
NOTES: FLORIDA's proposed ballot question was removed from the ballot by the state court on August 31, 2010.
United States map with 2009-2010 Legislation Opposing Certain Health Reforms

New Laws:  Seven states have signed or enacted statutes in 2010, based on final actions as of January 2011:
  • A Virginia law passed both Senate and House, was amended by the Governor and both branches of the legislature and became law as Chapter 106 on March 10, becoming the first such statute in the nation.*  
  • Idaho enacted a similar statute, signed as Chapter 46 on March 17. 
  • A Utah statute, signed March 22, prohibits any state agency from implementing health reform unless state agencies recommend action or the legislature passes a provision.
  • A Georgia statute addition was substituted during a conference committee and passed by Senate and House on the last day; it was signed into law by the governor on June 2. 
  • Louisiana enacted a statute, declaring that residents "shall be free from governmental intrusion in choosing or declining to choose" health coverage; signed July 2.
  • Arizona enacted a separate statute, similar to their constitutional ballot question for November 2010. (Explained below) 

     Statute by Ballot Question approved in Missouri

  • Missouri's Legislature passed a proposed statute, but required that it be put to voters for approval or disapproval on their primary election day, Tuesday August 3, 2010. It was approved by a 71.1 percent yes vote. 

Constitutional Ballot Questions passed in two states:

  • Arizona's resolution of June 2009 was the first constitutional ballot question measure to have passed the legislative process; it was approved by voters on November 2, 2010. (Also see statute, listed above).
  • Oklahoma's constitutional amendment ballot question was approved by the Senate and House in May 2010; it was approved by voters on the November 2, 2010 ballot.
Question Rejected by Voters
Although the legislature rejected a resolution on the topic, a citizen initiative proposed constitutional amendment was placed on the November 2, 2010 ballot; it was rejected .

Question Rejected by Court:       Florida's legislature was the second state to approve a constitutional amendment ballot question, on 4/22/10, for a decision by voters on Nov. 2, 2010. However, in late July a Florida District court ruled the question wording as inappropriate; on August 31 their State Supreme Court agreed that the question must be removed from the ballot. 

Non-binding measures:

South Dakota passed a resolution opposing "government take-over" of health care. South Carolina adopted a resolution opposing health mandates and directing the attorney general to challenge such provisions in federal health reform. A Michigan Senate resolution urging removal of financial obligations passed in January 2010.  Idaho called for adding a U.S. Constitutional Amendment to provide that Congress shall make no law requiring citizens of the United States to enroll in, participate in or secure health care insurance or to penalize any citizen who declines to purchase or participate in any health care insurance.  Florida's  non-binding Senate resolution, passed after the November 2010 election,  urges the U.S. Congress to amend Medicaid law in order to "reestablish a fair and prudent federal-state partnership" that allows each state "the freedom to craft a Medicaid program that meets the needs of its residents" without mandatory expansion and enables states to provide cost-effective health care services to low-income residents.

Measures That "Did Not Pass:" 

For the 2009-2010 legislative sessions, 30 states have failed to pass or have rejected bills and resolutions (29 states in 2010, one in 2009)
For 2010 sessions, the states are: Alabama, Alaska, Arkansas, California, Colorado, Delaware, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Michigan, Minnesota, Mississippi, Nebraska, New Hampshire, New Mexico, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Washington, West Virginia, Wisconsin and Wyoming. A 2009 North Dakota constitutional proposal did not pass by the end of their session.   An "interim study proposal" resolution was not acted on in Arkansas.  [1]
The issue has garnered state legislative interest in 2009-2011 in part due to the American Legislative Exchange Council's (ALEC) model "Freedom of Choice in Health Care Act," which the organization described as "How Your State Can Block Single-Payer and Protect Patients' Rights."  The ALEC-endorsed language mirrors Arizona Proposition 101, which was narrowly defeated in 2008 but passed on the November 2010 ballot.

Filed Bills and Resolutions for 2009-2010

A state-by-state table of all filed measures is available in a separate NCSL online report [click here]

Table 2:  State Attorneys General or Governors Seeking to Block Healthcare Law in Court

These actions are listed for information only.  Unless otherwise noted above, they may have no connection to actions or decisions by the state legislatures.
Can Congress compel Americans to engage in specific commercial transactions?
In early April, 2010,  13 state attorneys general filed a lawsuit seeking to repeal health care reform in federal court in Florida; by June a total of at least 20 states had some role in support of this legal challenge. Virginia Attorney General Ken Cuccinelli is pursuing a similar suit in his home state. The cases center on health care reform’s mandate that Americans, starting in 2014, purchase insurance. If they do not, they may be subject to a fine of $750, or 2 percent of their income, whichever is greater.
Key ACA Provisions Challenged
Collectively the litigation raises constitutional challenges to four provisions of the ACA, as analyzed in a brief by the George Washington Law Center.
  • Individual responsibility – The law’s requirement that beginning January 1, 2014, non-exempt individuals either maintain health insurance coverage (termed “minimum essential coverage”)[10] or pay a penalty in the form of a tax.[11]
  • Medicaid expansion – The law’s requirement that states participating in Medicaid expand their programs, beginning January 1, 2014 to cover non-elderly persons with incomes below 133 percent of the federal poverty level (FPL), including individuals previously ineligible for federally assisted Medicaid benefits.[12]
  • Insurance market reforms – Federal reforms aimed at curbing certain practices by health insurers, specifically: reforms that require insurers and self-insured group plans to issue and renew health insurance coverage without regard to the health status of individuals or groups, and to offer coverage that is not subject to annual or lifetime limits and that complies with certain other requirements.[13]
  • Employer responsibility – The law’s minimum employer contribution responsibilities in the case of employers that either offer no plan or a plan with inadequate subsidies, with contribution responsibilities tied to the number of employees that qualify for a subsidy.[14]
On April 6th, the Thomas More Law Center asked the U.S. District Court for the Eastern District of Michigan (Case No. 2:10-cv-11156-GCS-RSW)  for a preliminary injunction preventing the implementation of the health care reform provision that would require all Americans to purchase health insurance.
The Center, in its motion for preliminary injunction, claimed that health care reform, particularly the individual mandate, “represents an unprecedented encroachment on the liberty of all Americans, including plaintiffs, by imposing unprecedented governmental mandates that restrict their personal and economic freedoms in violation of the Constitution.”   Read more:
As of May 2011 there are two distinct state-based federal court challenges and several other private party suits with judges' rulings:New item
  1. State of Florida v. U.S. Dep't of Health & Human Services. (led by Florida A.G.; in Florida Northern District Court; Case No.3:2010-cv-0009 ) Filed March 23, 2010.  On January 31, 2011 Federal District Judge Roger Vinson declared the federal health care overhaul unconstitutional, siding with 26 states that sued to block it, saying that people can't be required to buy health insurance by 2014 or face penalties. He went a step further than a previous ruling against the law, declaring the entire thing unconstitutional if the insurance requirement does not hold up. Attorneys for the administration had argued that the states did not have standing to challenge the law and that the case should be dismissed. The final step will almost certainly be the U.S. Supreme Court. Two other federal judges have already upheld the law and a federal judge in Virginia ruled the insurance mandate unconstitutional but stopped short of voiding the entire law. At issue was whether the government is reaching beyond its constitutional power to regulate interstate commerce by requiring citizens to purchase health insurance or face tax penalties.
    >  Judge Vinson held a hearing on the merits for December 16.
    > "Fla. judge strikes down Obama health care overhaul" - Washington Post 1/31/2011
    >  Judge Vinson Replies on Feb. 18 to Administration's Request for Clarification on the Florida Decision Regarding the ACA, with an Order Directing Expedited Filing.  The order suggests that a clarification about the legal effect of the January 31 ruling will be expedited as well.
    > On March 3, Judge Vinson, in response to the February 18 Administration’s “Motion to Clarify” his decision regarding the constitutionality of the Affordable Care Act, ruled that he would not require the Administration to cease implementation of the Affordable Care Act, but does require the Administration to move forward on their appeal of his decision (finding the Act unconstitutional ) within seven days.  He stated that imposing a stay on implementation would be unnecessarily disruptive and asked the Administration to request expedited consideration in either the federal appeals court or the U.S. Supreme Court.
    > On March 10, both parties requested an expedited appeal to the U.S. Appellate Court.  See: State Response to DOJ Motion to Expedite |  FL Petition for Hearing, March 10.  The case will be heard by the U.S. Court of Appeals for the 11th Circuit on June 8, 2011. New item
    > On April 8, an amicus brief was filed on behalf of a bipartisan group of 154 state legislators from 26 states, supporting the federal government's appeal .New item
  2. Commonwealth of Virginia v. Sebelius. (led by Virginia A.G.; initially in U.S. District Court for the Eastern District of Virginia; Civil Action No. 3:10-cv-188).  Filed March 23, 2010. Judge Henry Hudson in August 2010 declined to dismiss the suit. He issued a ruling declaring the individual mandate unconstitutional on December 13, 2010.  The appeal by the Administration was heard by the U.S. Court of Appeals for the 4th Circuit on May 10. New item
    > Health Care Law Ruled Unconstitutional (NY Times, 12/13/2010)
    > Virginia: Reply_Memo_Summary_Judgment-Oct. 4  | 
    [see "opinions" section below]
  3. Thomas More Center v. Obama. (on behalf of 4 residents of S.W. Michigan; in U.S. District Court for the Eastern District of Michigan; Case No. 2:10-cv-11156-GCS-RSW) Filed March 23, 2010. On October 7, Judge George Steeh dismissed this case, stating that choosing not to obtain health insurance coverage qualified as an example of "activites that substantially affect interstate commerce." Plaintiffs appealed to the U.S. Court of Appeals for the 6th Circuit, with a hearing on June 1, 2011.
    > News article, "Federal appeals court in Cincinnati upholds health overhaul, handing Obama important victory", Washington Post, 6/29/2011New item
  4. Liberty University v. Geitner.  Also in Virginia, a private party suit by Liberty University was rejected in the U.S. District Court for the Western District of Virginia on November 30; the judge issued a 54-page ruling that granted the government’s request to dismiss the case. The appeal to the U.S. Court of Appeals for the 4th Circuit will be heard May 10, 2011.  [read news article]
  5. US Citizens Assoc. v. Sebelius. In another private party suit, the U.S. District Court for the Northern District of Ohio in a ruling Nov. 22 allowed part of a lawsuit challenging the constitutionality of the health reform law to move forward. Dismissing three claims brought by the U.S. Citizens Association, Judge David Dowd agreed to hear arguments that the law’s individual mandate violates the Constitution’s interstate commerce clause. The rejected claims asserted that the law violated plaintiffs’ freedom of association guaranteed by the First and Fifth Amendments, the due-process clause of the Fifth Amendment and plaintiffs’ right to privacy. “It is apparent to the undersigned that the controversy ignited by the passage of the legislation at issue in this case will eventually require a decision by the Supreme Court after the above-described litigation works its way through the various circuit courts,” Dowd wrote.
  6. Judge dismisses lawsuit claiming Obama's health care mandate violates religious freedoms.   U.S. District Judge Gladys Kessler, of the District of Columbia, on February 22 dismissed a lawsuit filed by the evangelical Christian legal group the American Center for Law and Justice on behalf of five Americans who prefer not to purchase health insurance. Three are Christians who say they rely on God to protect them. The two others have a holistic approach to medical care.   The Judge wrote that Congress "was acting within the bounds of its Commerce Clause power" when it mandated that individuals buy health insurance by 2014 or pay a penalty.  In upholding the law, Kessler said that the decision to forgo health insurance by some individuals leads to substantially higher insurance premiums for other individuals who do obtain coverage. "There is nothing extraordinary about Congress' use of its Commerce Clause power," she wrote, "to rein in the price of health insurance policies."
  7. Other -- There are a variety of other private-party filed lawsuits related to the 2010 federal health law.  [litigation list]
♦ - Website maintained by the Florida Attorney General on behalf of the 26 joint state plaintiffs.
♦  U.S. Justice Department "Defending the ACA" website with all legal documents related to the ACA lawsuits.
♦  ACA litigation blog.  Link to experts and personal opinions about court cases.  (NCSL is not responsible for any material or postings on this blog site)
         ACA Litigation Snapshot Overview: a speadsheet summarizing the current status of (most of) the various lawsuits 5/10/2011.
 Judges Offer Mixed View on Health Law - an analysis of the Appeal Court oral arguments in Atlanta, Wall Street Journal, 6/8/2011
♦ Battle Over Health Care Law Shifts to Federal Appellate Courts. "Since the enactment of the Affordable Care Act in March 2010, 31 lawsuits have been filed to challenge it, according to the Justice Department, which is defending the Obama administration. Nine are awaiting action by Courts of Appeals, and nine are pending in federal district courts. The others have been dismissed."  New York Times, 5/9/2011.New item
♦  Health Care Lawsuit Moves Step Closer to U.S. Supreme Court Hearing, Oral Argument Set for June 8 - Statement by Florida Attorney General, 3/31/11.
Supreme Court Stays Quiet On Fast-Tracking Review Of Health Law - Kaiser News Network, 4/18/2011New item
Health care law gets day in court - Justices' reaction to challenges of the new law could shape its future.  USA Today, 4/14/11.
Legal Challenges to the Affordable Care Act - Legal brief by Katherine Hayes and Sara Rosenbaum of the George Washington Law Center; updated December 6, 2010.
♦ HHS Letter to State Governors in Response to Legal Challenges to Individual Mandate -Letter from Secretary of the Department of Health and Human Services Katherine Sebelius to state governors - December 2010.
♦ Health Law Faces Threat of Undercut From Courts - New York Times, November 27, 2010
Overview of Litigation Filed to Stop Health Reform  - National Health Law Program (NHeLP)- Jane Perkins,  June 2010)
♦  Court documents and complaints - National Health Law Program (NHeLP) - Updated February 2011
  Q & A: Update on Litigation Challenging the Affordable Care Act - National Health Law Program (NHeLP) - Updated November 9, 2010

Constitutional Issues and the Patient Protection and Affordable Care Act - Meeting Session

NCSL's Legislative Summit 2010, July 27, 2010 — Louisville, Kentucky
Since passage of the federal health reform laws in March, questions have been raised about the constitutionality of some key provisions, including the requirement that most people have health insurance and the expansion of who is entitled to Medicaid. Explore and discuss these key constitutional questions and review pending challenges to the new laws.

List of States Attorneys General  (or Governors*) acting to pursue lawsuits opposing health provisions.

-As of May 4, 2011
Note: Statements and actions by state executive officials are listed for background information only.  This report does not evaluate the role or claims of such officials.
*  = States where legal action was initiated by governors' offices.
** New executive branch officials for 2011 announced support for lawsuit.
§ = States where Attorney General initiated action but Governor publicly supports law, opposes challenge.
§§ = The Republican AG of Penn. was elected Governor on 11/2/2010.

2011 News and Articles

Some Legal and Legislative Opinions on Anti-Reform State Actions

Rep. Nancy Barto, chairwoman of the Arizona House's Health and Human Services Committee, sponsored the bill that led to the ballot referendum. Her basic argument is that "there is no place for government between someone and their doctor," said Becky Blackburn, communications director for the Republican Caucus of the Arizona House of Representatives.
Rep. Linda Upmeyer, Iowa State Representative and the chair of ALEC's Health and Human Services Task Force stated, "Federal health care reform efforts may include a requirement that individuals purchase health insurance, and a so-called 'public option' which will result in less choices for consumers and new government mandates."
Thomas Miller, resident fellow at the American Enterprise Institute, stated that lawsuits are likely to challenge the mandate as an unprecedented violation of inherent individual rights under the U.S. Constitution in enforcing the purchase of a product "with no other reason other than the fact that you are just living in the country. "There's no clear Supreme Court precedent suggesting that this is going to be overturned constitutionally," he said. However, "give me the right five justices and anything's possible. Enforce it in a particularly onerous, all-encompassing, unfair manner and then it's more politically viable for judges to have problems with the way it comes out."[2]

The New York Times cited several legal experts who said "they saw little room for such a challenge:"
Mark A. Hall, professor of law and public health at Wake Forest University, says states don't have the power to override or "opt out" of, or not participate in the mandate.  The debate is "a flash in a pan" set off by libertarians who say "Washington, D.C. shouldn't be telling us what to do," he said. “There is no way this challenge will succeed in court,” adding that the state measures seemed more “an act of defiance, a form of civil disobedience if you will.” [2]   Hall has studied the constitutionality of mandates that people buy health insurance, for the O'Neill Institute at Georgetown University.
Timothy Stoltzfus Jost, a health law expert at Washington and Lee University School of Law, concludes that “States can no more nullify a federal law like this than they could nullify the civil rights laws by adopting constitutional amendments.”   [3, 8] In March 2010, he added, “State law cannot nullify federal law. This principle is simply beyond debate, and state legislators, many of them lawyers, know that,” writes Jost in the New England Journal of Medicine. “The purpose of these laws, therefore, is not legal but rather political.” Should health reform pass, the state bills “can thus be seen as invitations to civil disobedience that counsel state citizens to ‘violate the federal law, wave this statute in their face, and dare them to come after you,’” says Jost
Randy E. Barnett, a Georgetown law school professor who has written about what he views as legitimate constitutional questions about health insurance mandates, seemed doubtful. “While using federal power to force individuals to buy private insurance raises serious constitutional questions,” Professor Barnett said, “I just don’t see what these state resolutions add to the constitutional objections to this expansion of federal power.” [8]
Stuart Taylor Jr. wrote, in "Health Law Not A Sure Bet In Court," ... But A Decision In Its Favor Is Still The Best Bet.   What chances of success await the lawsuits challenging the constitutionality of the new health insurance reform law filed by 14 state attorneys general this week, with more lawsuits by states, individuals, and companies in the pipeline?
     Not much, according to most of the academic experts who have weighed in. They confidently predict that the Supreme Court will (if the case gets that far) uphold the new law's major provisions. These include the much-debated mandate for individuals to buy comprehensive health insurance unless they're already covered by employer-based plans, and also the requirement that states spend billions of dollars expanding their Medicaid programs (unless they withdraw) and administering the complex new law.  These experts cite the justices' very broad reading since the New Deal of Congress' powers to regulate interstate commerce and to tax and spend.  -National Journal, 3/26/2010
New itemVirginia lawsuit oral arguments: [as reported by the New York Times, 10/19/10] Judge Henry Hudson said he would rule by the end of the year on the constitutionality of the new health care law, as lawyers for the Obama administration and the Commonwealth of Virginia debated whether the entire 2,700-page act should be invalidated if a key provision is struck down. In a nearly three-hour hearing, a lawyer for the commonwealth argued that if Judge Henry E. Hudson of Federal District Court finds unconstitutional the provision that requires Americans to have health insurance, he should declare the entire law void until the Supreme Court can review it. The lawyer noted that in writing the legislation, Congress failed to include “severability” language to specify that the rest of the law would survive.
     But the federal government’s lawyers argued on Monday that other provisions, like the vast expansion of Medicaid eligibility, could survive, and that the judge should keep the law in effect during the appeals process.   That this stage in the legal assault on the health law has arrived so quickly is striking, given that many prominent law professors dismissed the challenges as baseless only seven months ago, when the first of more than 15 lawsuits were filed.
     The Justice Department concedes that some of the most essential insurance changes, including requiring insurers to cover those with pre-existing conditions, will have to be scrapped if the coverage requirement loses in the courts. The administration maintains that the regulations can work only if everyone is required to have coverage, so people will not simply wait until they get sick to buy policies."

Scott Steinke, The Pink Sheet, (October 25, 2010) reports on "If States Win Lawsuits Against Health Reform Law, How Might Pharma Fare? ...While it's likely to be 2012 before a final decision is handed down in lawsuits states have brought challenging the constitutionality of the Patient Protection and Affordable Care Act, questions are already arising about the possible impact on the law's pharmaceutical-related provisions if the states prevail...provisions such as PCORI or generic biologics have no connection to the individual mandate or Medicaid expansion, and thus stand a chance of being implemented regardless of the judicial outcome.” Paid Subscription Required
Wendy K. Mariner, J.D., M.P.H., and George J. Annas, J.D., M.P.H., Boston Univ. School of Public Health published the following, Health Insurance Politics in Federal Court  in NEJM, August 25, 2010 (c) 2010 NEJM.  Excerpts--
"Having been outmaneuvered in Congress with the passage of the Patient Protection and Affordable Care Act (“Affordable Care Act,” or ACA), Republicans have taken their case to federal court, arguing that the law’s key provision, the individual mandate to purchase health insurance, is unconstitutional. This argument has been made most prominently by attorneys general from 20 states in a Florida federal court and by the Commonwealth of Virginia in a Virginia federal court. In early August, federal district court judge Henry Hudson decided that the Virginia challenge deserves a hearing,12 thereby giving the constitutional argument an aura of respectability and ensuring that we’ll hear more about the meaning of states’ rights in the context of the Constitution’s Commerce Clause (which grants Congress the authority to regulate interstate commerce), both in court and on the campaign trail.
The states have inherent (police) powers authorizing them to regulate residents’ inactivity — to require residents, for example, to get vaccinations and even to purchase health insurance, as Massachusetts does. The federal government’s powers are limited to those listed in the Constitution, but the reach of the Commerce Clause has necessarily expanded with the national economy. Virginia argues that if Congress can regulate inactivity that affects interstate commerce like insurance and health care, then there is no practical limit to federal regulation and Congress will usurp the state’s police powers.
The fundamental legal problem is whether, if the federal government can penalize individuals for refusing to purchase health insurance, there is any principle that would limit the power of the federal government to penalize the failure to purchase other products, such as a daily newspaper to save the newspaper business from extinction. The federal government’s answer is that people simply cannot choose “to avoid participation in the health care market.”1 Rather, “it is inevitable . . . that every person — today or in the future — healthy or otherwise — will require medical care,” and the ACA provides a dependable, affordable mechanism to pay for such care.12
This answer may offer a limiting principle that distinguishes the ACA from a hypothetical penalty for not buying newspapers. There are few nondiscretionary national markets in which virtually all Americans inevitably participate. Congress could not require all Americans to buy cars from Detroit in order to shore up the automobile industry; not everyone needs a car. On the other hand, perhaps the federal government could justify penalizing individuals for not buying an apple a day or for not buying a gym membership or multivitamins, at least if these purchases are seen as integral parts of containing costs in a national health insurance market, because people who don’t make these purchases increase health care costs for all of us.
We think that the federal government has the more realistic view of how the national economy functions and how the Constitution should function today. Nonetheless, the outcome in the federal courts is far from certain and will ultimately be decided by a Supreme Court that is just as ideologically fractured as the Congress that passed this law. Other clearly constitutional approaches were available, including Medicare for All, or simply raising the income or payroll tax to pay for health benefits, but these would have been even more objectionable to those who are raising Commerce Clause problems with the ACA.
Judge Hudson’s next decision, this fall, will be on the merits of the case, and as he recognizes, his decision will be appealed no matter how he rules. But health care politics will not be put on hold while we await judicial resolution, which could take years. Without mentioning the Commerce Clause or health care, many politicians will campaign on the argument that the federal government is too big, is too intrusive into our individual lives, and spends too much money. In this debate, the ACA will be exhibit number one."  (10.1056/NEJMp1009054) was published on August 25, 2010, at
♦ Ruth Marcus, a legal analyst writing for the Washington Post (November 26, 2009),"Constitution no bar to health reform," seeks to make a detailed case that the latest federal proposals are constitutional.  She stated,
"Is Congress going through the ordeal of trying to enact health-care reform only to have one of the main pillars -- requiring individuals to obtain insurance -- declared unconstitutional? An interesting debate for a constitutional law seminar. In the real world, not a big worry.    ...  it's worth explaining where the Constitution grants Congress the authority to impose an individual mandate. There are two short answers: the power to regulate interstate commerce and the power to tax.  The (Commerce) clause empowers Congress "to regulate commerce . . . among the several states," which may not sound terribly far-reaching. But since the New Deal, the Supreme Court has interpreted this authority to cover local activities with national implications.
... But the individual mandate is central to the larger effort to reform the insurance market. Congress may not be empowered to order everyone to go shopping to boost the economy. Yet health insurance is so central to health care, and the individual mandate so entwined with the effort to reform the system, that this seems like a different, perhaps unique, case.  Congress clearly has authority to, in effect, require employees to purchase health insurance for their old age by imposing a payroll tax to fund Medicare.
The individual mandate is to be administered through the tax code: On their forms, taxpayers will have to submit evidence of adequate insurance or, unless they qualify for a hardship exemption, pay a penalty.  See full text online.

NCSL provides links or references to third-party articles and information as a convenience. NCSL is not responsible for the accuracy or completeness of such material.

 [1] American Legislative Exchange Council (ALEC) as quoted in article of August 12, 2009 and NCSL interview with Christie Herrera, ALEC Health Director, August 17, 2009.
[2] Insurance NewsNet: Legal Analysts: "Suits May Challenge Constitutionality of Individual Mandate in U.S. Health Reform," October 8, 2009.
[3] New York Times "Health Care Overhaul and Mandatory Coverage Stir State' Rights Claims," September 29, 2009
[4] CNS, a subsidiary of the Media Research Center. "Nineteen States Move to Defend Individual Health Care Choice," Tuesday, October 27, 2009
[5] Inside ALEC: "Arizona Poised to Block Single-Payer Health Care." Page 11, July 2009.
ALEC web site, accessed 12/31/2010.
[5A] Marsha Shuler, The Advocate, [Baton Rouge]. [Louisiana state] legislator pushing amendment addressing health-care changes."  August 11, 2009
[6] Gov. Perry told Dallas talk radio WBAP's Mark Davis; as reported by the Fort Worth Star-Telegram, 7/23/2009
[7]  Deseret News, "Pushing back against feds,"   August 13, 2009
[8] Professor Randy Barnett and Professor Timothy Jost: "Healthcare: Is 'mandatory insurance' unconstitutional?" Sept. 18 2009:
[9]  Inside ARM. State Lawmakers Seek Legislative Solutions to Health Care Reform Mandates - September 28, 2009.
[10] News-Leader (Missouri)  Lawmakers: Overhaul a threat to freedom. November 15, 2009
[11] Denver Post. Efforts already underway in Colorado to blunt federal health care reforms.  December 30, 2009
[12] Virginia v. Sebelius, 2010 U.S. Dist. LEXIS 77678; Filed March 23, 2010 (Aug. 2, 2010).
Visit this report online for future updates, at     Updated: 5/19/2011, 11:37 PM MDT; 5/23/11 10:54 PM MDT
NCSL Health Reform resources:
Denver Office
Tel: 303-364-7700 | Fax: 303-364-7800 | 7700 East First Place | Denver, CO 80230
  Washington Office
Tel: 202-624-5400 | Fax: 202-737-1069 | 444 North Capitol Street, N.W., Suite 515 | Washington, D.C. 20001
©2011 National Conference of State Legislatures.  All Rights Reserved. 


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