PHOENIX -- In 2006, long before there was an Obama administration determined to impose a command-and-control federal health care system, a young orthopedic surgeon walked into the Goldwater Institute here with an idea. The institute, America's most potent advocate of limited government, embraced Eric Novack's idea for protecting Arizonans from health care coercion. In 2008, Arizonans voted on Novack's proposed amendment to the state's Constitution:
"No law shall be passed that restricts a person's freedom of choice of private health care systems or private plans of any type. No law shall interfere with a person's or entity's right to pay directly for lawful medical services, nor shall any law impose a penalty or fine, of any type, for choosing to obtain or decline health care coverage or for participation in any particular health care system or plan."
Proponents were outspent 5-1 by opponents who argued, meretriciously, that it would destroy Arizona's Medicaid program, with which many insurance companies have lucrative contracts. Nevertheless, the proposition lost by only 8,687 votes out of 2.1 million cast, and Arizonans will vote on essentially the same language next November.
But does not federal law trump state laws? Not necessarily. Clint Bolick, a Goldwater Institute attorney, says, "It is a bedrock principle of constitutional law that the federal Constitution established a floor for the protection of individual liberties; state constitutions may provide additional protections."
In 1997, the U.S. Supreme Court held that under the Constitution's system of "dual sovereignty," states' "retained sovereignty" empowers them to "remain independent and autonomous within their proper sphere of authority." The court has been critical of the "federalism costs" of intrusive federal policies, and recently has twice vindicated state sovereignty in ways pertinent to Novack's plan.
In 2006, the court overturned an interpretation of federal law that would have nullified Oregon's "right to die" statute. The court said states have considerable latitude in regulating medical standards, which historically have been primarily state responsibilities.
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