On the Nov. 2 ballot, Oklahomans will decide whether or not they want Oklahoma to opt-out of federal health care through State Question 756.
SQ 756 is based upon Senate Joint Resolution 59, which was co-sponsored by Sen. Dan Newberry, R-Tulsa, and passed in the spring 2010 legislative session.
"What (SQ 756) allows is for the people of Oklahoma to voice their opinions on the issue, and should they decide that they want to pass this initiative, it will give us a basis to fight under the 10th Amendment for state's rights by saying, 'Look, this is a violation of our Constitution; our people don't want this,'" Newberry said.
According to the ballot language, SQ 756 would add a new section of law to the state Constitution that would prohibit making an individual, employer or health care provider participate in a health care system. It would allow individuals and health care providers to pay for treatment directly and allow individuals to purchase health care insurance in private health care systems as well as allow the sale of private health care insurance.
If passed, the constitutional amendment would not affect any rule or law in effect as of Jan. 1, 2010.
Rep. Mike Ritze, R-Broken Arrow, said SQ 756 does not question the constitutionality of the federal health care legislation but rather gives Oklahomans the choice to opt-out of it.
Ritze was the primary author of House Joint Resolution 1054, a statutory bill that allowed Oklahomans to opt-in or opt-out of "Obamacare." It was vetoed by Gov. Brad Henry in the spring 2010 session.
Ritze said if SQ 756 passes, he and other members of the Legislature will continue to file bills questioning the legality of the federal health care legislation and are working on other bills to "correct the high cost of health care."
"It does not guarantee lowering the number of uninsured, and it is going to shift the burden of the uninsured onto the states," he said. "There are certainly some good things in (the federal health care legislation) about the uninsured, like insuring children with disabilities and pre-existing conditions, but what we can see is that it is going to be passed along to everybody, and it is going to drive up the cost of health care costs."
While supporters see SQ 756 as a choice for Oklahomans, others see it as a futile attempt to negate the law with no legal bearing to do so.
"No state has the authority to selectively ignore federal laws of its choosing, no matter how much some people may dislike them, and any attempt to do so will be ruled unconstitutional by the courts, but not before a costly legal battle," Henry said in a statement. "I don't think it makes sense to waste taxpayers' money on a legal action we know we will lose, particularly during a historic revenue crisis."
Sen. Jim Wilson, D-Tahlequah, also said he thinks the passage of SQ 756 will do nothing if it passes. Because the health care system is disorganized, Wilson said the federal government is stepping in to fix the problem.
"We are being shortsighted by being against this," he said. "I see the value in some sort of universal health care, and it is unfortunate that the people of Oklahoma are voting against their self-interest and aren't thinking it through. No one in their right mind ought to be against it."
While Oklahomans have the decision to vote for the state opt-out of federal health care, constitutional law experts have differing views on how the referendum could affect federal health care in Oklahoma.
Andrew Spiropoulos, Oklahoma City University law professor and director of OCU's Center for the Study of State Constitutional Law and Government, said Oklahomans cannot opt-out of federal health care unless it is deemed unconstitutional, but the state might not be able to implement the health care mandates.
"An individual can't opt-out if the feds directly enforce it on them. If the law is constitutional, then the supremacy clause will come into play, the state government can opt-out if the federal government is trying to make them do it, which they can't, so really it is a state government opt-out," Spiropoulos said.
Spiropoulos said the way federal government would like the health care law to work is to operate through the state and not directly tell Oklahomans what to do. In other words, have the state government implement the federal law. With SQ 756, the state Constitution can prevent the state from carrying out the health care mandates, and the Supreme Court has ruled that the federal government cannot make a state do what the federal government wants it to do, Spiropoulos said.
Although, if a state does not carry out federal mandates, the federal government can do it themselves and establish agencies in the states to implement these mandates, he said.
"I think the whole idea behind this is to build momentum so that in the next few years, the health care plan will be repealed so the state won't face the choice of being forced to spend more money on Medicaid or repealing (SQ 756), so by 2014, the health care plan won't be around anymore and they won't have to face that choice," Spiropoulos said.
Unlike Spiropoulos, University of Oklahoma law professor Rick Tepker said SQ 756 will do nothing in terms of Oklahoma opting out of the federal health care law.
"States do not have power to opt-out of valid federal law. Now, if the health care law is invalid, state opt-out means nothing also because it is unconstitutional," Tepker said. "State law has no effect whatsoever besides make Oklahoma look bad. Oklahomans have taken a position that has been rejected prior to the Civil War, claiming the power to nullify federal law, which John Marshall and Abraham Lincoln said they don't have."
SQ 756 is a symbolic vote of whether or not Oklahomans support the federal health care plan, Tepker said.
"The issue is really as simple as does Article XI of the federal Constitution mean what it says "¦ federal law, Constitution and statutes are the supreme laws of the land," he said. "The sponsors of this legislation are acting as though that portion of the constitutional text didn't exist."
above President Barack Obama signs the Patient Protection and Affordable Care Act last March at the White House.
State Question 756
A "yes" vote for State Question 756 would amend the Oklahoma Constitution to opt-out of federal health care.
A "no" vote would not amend the Constitution.