Missouri's health care battle and differential judicial review of popular lawmaking.

Author:Frisardi, Raquel

    The appeal of popular lawmaking, one of the few ways in which citizens of our country may make their wishes directly known without elected officials acting as intermediaries, is obvious. (1) Whether via citizen-initiated petition or propositions from the legislature, more than half the states currently provide their citizens with the opportunity to enact laws through the ballot box. (2) Popular participation in government is a principle that has been endorsed with lofty rhetoric by some of history's most gifted political theorists. Alexis de Tocqueville wrote, "The absolute sovereignty of the will of the majority is the essence of democratic government...." (3) Abraham Lincoln asserted, "A majority ... is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism." (4)

    In 2010, Missouri voters opted to exercise their lawmaking prerogative by passing Proposition C ("Prop C"), a popularly enacted response to the now-infamous federal Patient Protection and Affordable Care Act. (5) As it appeared on the ballot, Prop C asked: "Shall the Missouri Statutes be amended to: Deny the government authority to penalize citizens for refusing to purchase private health insurance or infringe upon the right to offer or accept direct payment for lawful healthcare services?" (6) Missouri voters overwhelmingly answered "yes"; Prop C passed with more than 70 percent of the vote. (7) Prop C's chief sponsor in the Missouri Senate asserted, "The citizens of the Show-Me State don't want Washington involved in their health care decisions." (8) One Prop C supporter boasted that it was "the vote heard 'round the world." (9) However, the bill's critics denounced it as "a waste of time." (10)

    It seems clear that a state law whose unequivocal purpose is to "deny" authority to the federal government will not be allowed to stand if and when it becomes subject to judicial review under the Supremacy Clause of the United States Constitution. (11) However, whether or not the outcome of judicial review of Prop C is a foregone conclusion, the questions of exactly why the law is invalid, and what process of inquiry a court should go through to invalidate it, remain. The pertinent analytic framework for judicial review of Prop C is most likely the federal preemption analysis--an analysis of whether or not the law presents sufficient conflict with federal law that it must be struck down as unconstitutional under the Supremacy Clause. (12) Potentially, the standard federal preemption analysis could be modified to account for the popular origins of Prop C by either relaxing or increasing the level of judicial scrutiny applied. (13) Does the mere fact of the law's conflict with federal law automatically render it impermissible? Do the popular origins of the law make it particularly suspect when weighed against the product of constitutionally dictated, representative government? (14) or, should those origins bestow additional merit on the law? (15)

    This Note will open with a brief history of the process leading up to Prop C's enactment, (16) and will then discuss the basic framework for federal preemption analysis and the history of judicial review of popularly enacted laws. (17) This Note will then present two opposing views regarding the appropriate standard for judicial review of popular legislation: (1) As legislation created outside constitutionally prescribed government structure, popular legislation is constitutionally suspect and should thus be subject to heightened judicial scrutiny, (18) and (2) As an expression of pure majority will, popular legislation occupies a unique position in our democratic society and should thus be accorded special judicial deference. (19) Finally, this Note will argue that neither of these approaches is appropriate, and that the proper way to balance the ideological weight of popular lawmaking with its non-constitutional status is to view popular legislation through the same lens as its traditionally enacted counterpart. (20)

    Throughout this discussion, this Note will highlight specific features of Prop C that illustrate the pros and cons of each standard of judicial review.


    Missouri House Bill 1764, which would later become Prop C, was introduced in the State House of Representatives on January 21, 2010. (21) In its original form, the bill was a relatively innocuous revision of section 375.1175 of the Missouri Statutes--a provision containing liquidation guidelines for certain insurance companies. (22) However, the bill would soon become the nexus of a statewide struggle against "the unconstitutional encroachments of the federal government." (23)

    While House Bill 1764 was working its way through the legislative process, a resolution was introduced in the House that would have submitted to the voters of Missouri a proposal to amend the state constitution to address health care laws. (24) The pertinent part of the proposed amendment would read: "To preserve the freedom of citizens of [Missouri] to provide for their health care, no law or rule shall compel, directly or indirectly or through penalties or fines, any person, employer, or health care provider to participate in any health care system." (25) This resolution never made it past the initial stages. (26) However, on May 4, 2010, State Senator Jane Cunningham proposed a bill that substituted the original, innocuous text of House Bill 1764 with her own radically revised language. (27) Senator Cunningham's substitute language maintained the repeal of section 375.1175, but would also "enact in lieu thereof two new sections relating to insurance, with a referendum clause" (28) While the revised bill did not aim to amend the state constitution, it clearly adopted the language of Resolution 48. (29) This revised bill would become known as the Health Care Freedom Act. Senator Cunningham's revision of House Bill 1764, despite its significant departure from the original bill's purpose, passed overwhelmingly in the Senate by a vote of 26-8 and was subsequently adopted by the House. (30) Just a few weeks later, the bill was delivered to the Secretary of State for inclusion on the August 3 state ballot as Proposition C. (31)

    Prop C and its predecessor, Resolution 48, were both responses to the then-pending Patient Protection and Affordable Care Act, a massive health care reform effort by the federal government that was signed into law on March 23, 2010. (32) Given Prop C's language regarding compulsory participation and penalties, it seems clear that the referendum was primarily concerned with section 1501 of the health care bill, which amended the I.R.S. Code to impose a tax penalty on individuals failing to meet certain minimum coverage requirements. (33)

    However, despite voters' concerns about potential penalties for failure to purchase health insurance, the rhetoric surrounding Prop C in the months leading up to the election made clear that there were more significant concerns at stake. (34) From the beginning, the bill's supporters called into question the constitutionality of the Patient Protection and Affordable Care Act. (35) Voters echoed these sentiments: as one Prop C supporter at a local rally bluntly put it, the federal government's health care regulation attempts were "constitutionally wrong." (36)

    In addition to questioning the basis for federal authority behind the health care bill, Prop C's supporters also couched their arguments in terms of broader constitutional concepts concerning federalism, state sovereignty, and the very structure of American government. (37) At a "state sovereignty rally" around the introduction of Resolution 48, Senator Cunningham asserted, "This is not about health care. It's about power." (38) one promotional video, created by advocacy group united for Missouri, declared that "state sovereignty and state rights are on top of Missourians' priorities." (39) Prop C's primary advocacy group, Missourians for Health Care Freedom ("MHCF"), sought to sway voters by equating the passage of Prop C with "freedom" from "government control." (40) MHCF also couched its arguments in terms of broader ideology about the relationship between federal and state governments. (41)

    Above all, Prop C's proponents touted it as an opportunity to make a genuinely powerful statement regarding states' rights--a statement for which health care reform was merely a topical backdrop. "The world is watching[!]" declared an MHCF promotional video. (42) In the same video, Senator Cunningham called Prop C "the most important vote in the entire nation." (43)

    of course, the bill was not without its detractors. Criticism of the bill focused primarily on its meaninglessness, given its likely unenforceability as well as the fact that the most pertinent provision of the federal health care legislation--the individual mandate--would not go into effect until 2014. (44) Critics were also quick to remark that Prop C itself appeared unconstitutional. (45) The primarily "symbolic" nature of Prop C--a nature underscored by much of its proponents' rhetoric--also prompted criticism that the bill was merely a cynical manipulation of conservative voter sentiment. (46) The targeted use of radio ads (which appeared on conservative talk stations) and primarily Republican voter turnout in the August 3 election provided some support for critics' characterization of the referendum as "a Republican straw poll with a foregone conclusion." (47)

    Still, whether or not the results were truly reflective of the will of the general populace of Missouri, Prop C did pass by an overwhelming margin on August 3. (48) The evidence demonstrates that this vote was about more than health care. (49) More to the point, Prop C may properly be described as a plebiscite effort of constitutional proportions: (50) an effort to force resolution of contentious constitutional issues. (51)

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