Kansas Health Institute | Information For Policy Makers. Health for Kansans.

TOPEKA — A proposed constitutional amendment meant to protect Kansans from a possible "individual mandate" to have health insurance "is a symbolic measure and nothing more," according to a University of Kansas law professor who clerked under U.S. Supreme Court Justices Clarence Thomas and Byron White.

"Kansas has no power here," said Stephen McAllister, "Congress has it."

McAllister was one of three legal experts to testify Thursday to a Senate Judiciary subcommittee about the merits of Senate Concurrent Resolution 1626, which if approved by two-thirds of the Legislature and a majority of Kansas voters would add a new article to the state constitution stating that no Kansan could be compelled to "participate in any health care system or purchase health insurance."

The amendment has been proposed in Kansas and dozens of other states, sponsored mostly by conservative Republicans worried about federal health reform proposals crafted by Democrats in Congress.

McAllister warned committee members that adding the article to the state constitution could have unintended consequences.

"It won't restrict Congress but it will restrict the Kansas Legislature," he said.

McAllister said the commerce clause of the U.S. Constitution has been well tested and it was unlikely federal judges would let Kansans' ideas on health reform override those of Congress.

"Federal power will win"

But even if the U.S. Supreme Court were to reject a congressional mandate that individuals have health insurance or pay a tax penalty, it wouldn't be because SCR 1626 was added to the Kansas Constitution but because of some legal principle other than states' rights.

"If there is a conflict between the state and federal power, the federal power will win," he said.

McAllister told senators they might consider other ways to make a "symbolic gesture," expressing their disagreement with the so-called individual mandate.

They could pass a law or statute, which wouldn't stop Congress, either, but would be easier for state lawmakers to change when they needed to. Or they could simply pass a resolution, stating the will or desire of the Kansas Legislature.

Senators also heard from Kris Kobach, a law professor at the University of Missouri-Kansas City. Kobach is a former chairman of the Kansas Republican Party and a candidate for secretary of state.

Kobach agreed that adopting the amendment wouldn't "defeat federal preemption," but he said it could change the "context of the legal analysis" if or when the U.S. Supreme Court decides that Congress overstepped the U.S. Constitution in its writing of federal health reform.

And if the court did uphold the federal it wouldn't be slapping down a single Kansan, but the whole state.

"By upholding the federal act," he testified, "the court would not simply be rejecting the argument of one person, it would be negating a state constitutional right adopted by the entire people of Kansas."

He said the amendment would also allow the state to sue over health reform on behalf of individual Kansans.

But McAllister said if Congress passed something that challenged individual rights, then it would need to be individuals who challenged the legality of the congressional challenge. So far, of course, Congress hasn't passed a health reform bill.

"Individuals have to assert those rights, not states," he said.

"Possibility, not a likelihood"

The committee also heard from David Roland, a policy analyst and constitutional attorney with the Show-Me Institute, a free market think tank based in St. Louis. The institute's chairman is banker Crosby Kemper III.

Roland said the current make up of the U.S. Supreme Court made it less certain that federal law would trump a state constitution, but he called it "a possibility, not a likelihood," that the court would overturn a federal health reform law.

He said he thought the decision could hinge on Justice Anthony Kennedy who sometimes votes with the court's conservatives but sometimes with the moderates and liberals.

Sen. John Vratil, R-Leawood, chairs the committee, which took no action on the proposal. He said members would revisit the amendment at a yet to be determined date.