Tennessee Attorney General Bob Cooper released an opinion today declaring that efforts underway in the state Legislature to challenge the federal government’s health care overhaul may not hold water.
“The public policy expressed in both SB 3498/HB 3433 and HJR 745 is directly opposed to the expressly stated Congressional intent of ‘achiev[ing] near-universal coverage’ for health care insurance,” according to the April 6 statement signed by Cooper, Solicitor general Michael E. Moore and Senior Counsel to the AG, Sue A. Sheldon.
The opinion came in response to a question posed to the attorney general by three House Democrats — Speaker Emeritus Jimmy Naifeh, Rep. Charles Curtiss and Rep. Henry Fincher– as to whether bills and a resolution currently under consideration in the House Commerce Committee are “likely preempted by federal law.”
The stated answer to that question in the opinion is, “Yes. A court would likely determine that SB 3498/HB 3433 and HJR 745 are preempted by conflicting provisions of the federal Patient Protection and Affordable Care Act.”
House Bill 3433, sponsored by Rep. Mike Bell, R-Riceville, declares “that the public policy of this state, consistent with our constitutionally recognized and inalienable rights of liberty, is that every person within this state is and shall be free to choose or decline to choose any mode of securing health care services without penalty or threat of penalty.”
The bill continues, “No public official, employee, or agent of this state or any of its political subdivisions shall act to impose, collect, enforce, or effectuate any penalty in this state that violates the public policy set forth in this section.”
It also declares it “the duty of the attorney general and reporter to seek injunctive and any other appropriate relief as expeditiously as possible to preserve the rights and property of the residents of this state, and to defend as necessary this state, its officials, employees and agents” against legal action by the federal government.
The companion bill, SB3498, passed the Senate on a 26-1 vote Feb. 17.
HJR745 is a constitutional amendment sponsored by Rep. Susan Lynn, R-Mt. Juliet.
It says no “law or rule shall…compel, directly or indirectly, any person, employer or health care provider to participate in any health care system” in Tennessee.
Citing the Supremacy Clause of the United States Constitution, the attorney general’s opinions states that if “either or both SB 3498/HB3433 and the constitutional amendment proposed by HJR 745 were enacted, adherence to both federal and state law would be impossible” and “would impede the achievement of the objectives of Congress as stated in the federal Act.”
The attorney general’s opinion also questioned the authority of the state Legislature to direct Tennessee’s highest ranking law enforcement officer, who is appointed by the state Supreme Court, to do anything.
“Legislation aimed at regulating the Attorney General’s discretion concerning which actions to prosecute and defend on behalf of the State could also raise separation of powers concerns, as the Office of the Attorney General and Reporter is a constitutional office that is part of the judicial branch of the State of Tennessee,” according to the opinion.
At a House Commerce Committee meeting Tuesday, Naifeh asked that the attorney general present his findings before members act on the legislation. Cooper is expected at next week’s committee meeting.
Mark Engler can be reached at email@example.com. Andrea Zelinski shot video and contributed reporting for this story. She can be reached at firstname.lastname@example.org.