By Katie Booth
This November, Floridians will vote on whether to amend the Florida constitution “to prohibit laws or rules from compelling any person or employer to purchase, obtain, or otherwise provide for health care coverage.” Similar constitutional amendments are on the ballot in Alabama and Wyoming and have already been adopted in Arizona, Oklahoma, and Ohio. While Florida’s proposed amendment has not received much attention after the Supreme Court’s decision to uphold the individual mandate requirement of the Affordable Care Act (“ACA”), these state constitutional amendments should not be written off entirely.
The Florida amendment could have some effect on the upcoming presidential election. Since the amendment is included on the ballot, it could help win votes for Romney and other Republican candidates by reminding undecided swing voters about the ACA as they are filling in the ballot. If the amendment passes—which requires sixty percent of the popular vote—it will almost certainly be seen as a referendum on the ACA that will give ammunition to Republicans in future elections.
The existence of these state amendments and other similar legislation also raises the stakes of future Supreme Court litigation over the ACA. While the Supreme Court may be loath to revisit the ACA anytime soon, opponents are likely to continue challenging different aspects of the ACA that have not yet been litigated. Some of these cases could eventually end up in the Supreme Court, especially if there is ambiguity around whether the ACA preempts certain aspects of state constitutional amendments.
If the Supreme Court strikes down some aspect of the ACA in the future, state constitutional amendments and other state legislation in conflict with that aspect of the ACA would go immediately into effect. This situation is similar to state abortion legislation. While Roe v. Wade and its progeny remain in effect, state statutes and constitutional amendments directly in conflict with Roe are unconstitutional and unenforceable. If Roe is overturned by the Supreme Court, however, abortion would become illegal in Louisiana, Mississippi, North Dakota and South Dakota. Restrictive abortion laws would go into effect in many other states. The promise of instant, widespread state restrictions on abortion is likely one factor driving continued challenges to Roe—and adding vitriol to the abortion debate by raising the stakes for both sides. State laws and constitutional amendments in conflict with the ACA could similarly fuel long-term litigation and ongoing heated debates far beyond this presidential election.
State constitutional amendments are particularly important because they can be difficult to repeal. If Florida’s proposed constitutional amendment passes, it will take sixty percent of voters to overturn it. Even if the political winds change and 59% of Florida voters support the individual mandate at some point in the future, if the Supreme Court overturns the individual mandate, Florida could not reinstate it on a statewide basis. While most states only require majority voting for constitutional amendments, a supermajority vote of the legislature is usually required to get amendments on the ballot, adding an extra hurdle to repealing constitutional amendments. It also simply takes time to get amendments on the ballot and to a vote. If the Supreme Court were to overturn some portion of the ACA, these state constitutional amendments would govern at least until the next election.
While state constitutional amendments that conflict with the ACA may seem relatively meaningless in light of the Supreme Court’s decision in NFIB v. Sebelius, it is worth remembering that these amendments could still play an important role in what is likely to be a long-term controversy over the ACA.