You may have noticed the statewide hubbub about the so-called “Puppy Mill Cruelty Prevention Act.” I’m starting to wonder how many people — on either side of the debate — have actually read either the proposed statute or the current law on the subject. To help clarify the conversation, I thought I’d offer the following comparison between the law currently on the books and the actual text of Prop B.

Prop B would certainly require some changes — for example, although it talks about the requirements for enclosures, it also seems to forbid them entirely by demanding “constant and unfettered access” to both indoor and outdoor spaces. Wouldn’t any enclosure that prevented such “constant and unfettered access” to these things violate the law?

Another interesting point is that, as you can see, some of the standards that Prop B would establish are actually lower than those in the current law. If the law currently requires that dogs be given food at least twice per day, why would you want to lower the requirement to feeding once a day? If the law currently sets the expectation that indoor facilities be kept higher than 50 degrees (and specifies the actions that must be taken to ensure the animals’ comfort if the temperature drops lower), why adopt the lower expectation of 45 degrees? Even where the standards established under the two laws are very similar, our current rules are very specific about how animals ought to be cared for. Why would it be a good idea to move from those specifics to something more general?

I am not, of course, advocating either in favor of the current law or in favor of Prop B. I just think that people should have a more thorough understanding of the proposed changes before they decide where they stand on this issue.

On Monday, the Show-Me Institute will host another Show-Me Forum in Columbia, at which I will present a talk called “Economic Liberty and Occupational Licensing: If You Aren’t Outraged, You Haven’t Been Paying Enough Attention.” I’ll talk about the ways in which occupational licensing laws are being used and abused both in Missouri and nationwide. As a special bonus, we will have on hand five or six Missouri entrepreneurs that the state believes are criminals, simply because they failed to get the government’s permission before providing useful services to informed, willing consumers.

For anyone who can’t make it to the Show-Me Forum, consider tuning in to Mike Ferguson’s radio show on Monday afternoon between 4:20 and 4:40, when Mr. Ferguson will interview me and Mrs. Brooke Gray, an equine dentist who has found herself in the crosshairs of the Missouri Veterinary Medical Board.

Decades ago, only doctors, lawyers, and accountants were required to get a license from the state before they could lawfully practice their professions. Over time, however, clever people in other lines of work realized that they could use the state government insulate themselves from competition by establishing licensing requirements and other regulatory barriers. The established interests in that profession would, of course, be “grandfathered” in and so would not have to obtain the schooling or pass the examinations that would be required for those wishing to compete with them.

This strategy worked like a charm. Professional associations would horrify lawmakers with stories about the dangers citizens faced from untrained, unproven service providers, arguing that the only reasonable course of action would be for the state to forbid citizens the right to work in these professions (or, alternatively, the right to hire someone of their choosing) unless the government had first given its stamp of approval. Then, the established practitioners would “capture” the regulatory agency put in place to oversee that profession, steadily broadening its powers and making it more and more difficult for competitors to enter the market — again, all in the name of customer protection.

Eventually, unlicensed people would be legally prohibited from providing even perfectly harmless services for which they were well qualified, all because the established interests in that profession had been able to persuade the legislature that consumers could not be trusted to choose competent professionals in the absence of a prohibitory licensing regime. As David Stokes has pointed out, this sort of occupational licensing does nothing to improve customer service or satisfaction, but it sure does make these services more expensive for the consumer! Numerous lawsuits have been filed challenging the validity of these absurd licensing requirements, but courts have upheld almost every licensing scheme ever concocted, taking the position that if any rational person anywhere could have ever considered the licensing requirements to be reasonable, they must be upheld. Today, nearly 30 percent of American workers must get formal government permission before they can earn a living in their chosen profession.

Does it sound like I’m just blowing this out of proportion? Consider that a number of states require citizens to become licensed funeral directors before they are allowed to sell caskets. For years Louisiana was the only state in the nation that required citizens to obtain a license before they could lawfully arrange and sell flowers until, in the face of a federal lawsuit and a withering public relations campaign by the Institute for Justice, the state legislature finally repealed the law. All across the country, interior designers have been actively pushing for laws that would make it illegal to offer unlicensed advice about throw pillows. Courts have been upholding these patently absurd laws — and others like them — all because the regulatory agencies deemed them necessary to protect the health and safety of the public!

Not only is Missouri’s state government taking part in this paternalistic, protectionist pastime, in the midst of a devastating economy the Missouri Division of Professional Registration has gone on the warpath against ordinary citizens whose only offense is attempting to earn an honest living in a harmless profession.

In a case currently pending before the Missouri Supreme Court, the Missouri Real Estate Commission is trying to shut down an apartment-locating service in Kansas City. The service employs a handful of single mothers who may not have book training, but they are experts at helping people new to the area find quality apartments. The government admits that the information provided by the service is truthful and entirely harmless, and the government’s own expert witness said that the service they provide should require no specialized training. According to the Real Estate Commission, not only does state law require that these women be added to the ranks of the unemployed, they should also be considered criminals. All for providing helpful, honest, and harmless advice.

African hair braiding is a cultural art form passed down from generation to generation for hundreds of years. Braiders use no harsh chemicals, nor any cutting implements on their customers, and, because excellent braiders have a highly-desired skill, this profession offers a tremendous opportunity for people to provide for their families even if they don’t have a college degree. For years, however, the state Board of Cosmetology has been adamant that no one should be permitted to make a living as an African hair braider until first completing 1,500 hours of formal cosmetology training and passing the obligatory tests established by the board. Out of those 1,500 hours of training, how much is likely to be spent learning African hair braiding? Zero. Most cosmetology schools don’t even offer it. But, as far as the Board of Cosmetology is concerned, if braiders haven’t obtained a cosmetology license, society would be better off with them being unemployed.

In just the latest example of the state’s outrageous efforts to put hard-working people out of work, the Missouri Veterinary Medical Board has followed the unfortunate lead of several other states in launching a lawsuit to prevent anyone but a licensed veterinarian from working with horses’ teeth. Why is this so outrageous? Because equine dentistry is a centuries-old profession that has never been the exclusive province of veterinarians, and most veterinarians don’t have anything like the training or experience held by the very workers they are now trying to push out of the market. The board’s action to shut out competition has absolutely nothing to do with the health and safety of horses; it has everything to do with lining the pockets of the licensed veterinarians.

In each of the above examples, the governmental actions against these workers had nothing to do with their competency or the quality of the services they provided. In fact, most of the targeted workers had a broad and satisfied group of clients who were eager to continue receiving those services. The decisive factor in erecting licensure barriers was the licensing authority’s passion for blocking out competition that might force their constituents to work harder. Politicians are currently paying a lot of lip service to the idea of saving money as a means to preserve or create jobs. A great place to start would be calling off this bizarre witch hunt against hardworking citizens whose only crime is to have made customers happy without first paying off the powers that be.

Various commenters across the state continue to argue that Prop C’s thundering success at the Aug. 3 primary election should not be taken seriously because of low voter turnout. As I have pointed out previously on this blog, the statistics really were overwhelming, even though only 20 percent of registered voters came out to the polls. All those who continue to harp on this issue should consider that Missouri’s current Constitution was adopted in a special election held on Feb. 27, 1945. The voter turnout on that day? Only 20 percent.

But I’ve been thinking about this issue a great deal lately. It does seem quite strange that our system would permit a relatively tiny fraction of the population to pass laws that will be binding on everyone. I also find it strange that elected officials can claim their positions without having earned the explicit approval of a significant percentage of the people who will be bound by their authority. After all, most legislative bodies have a quorum requirement that ensures that there must be a critical mass of support before they can take action. Wouldn’t it make sense for this principle to be applied to all votes?

Perhaps we should consider amending the Missouri Constitution to provide that no proposition may be considered passed and no politician may be considered duly elected unless a certain percentage of registered voters actually casts ballots on that issue or candidate. If any given issue or candidate cannot motivate enough people to come to the polls to vote in their favor, perhaps the people would be better off without them. For propositions, this simply means the status quo would continue. For offices, I submit that they should remain unfilled until the people of the relevant jurisdiction have called a special election that successfully attracts the requisite number of voters. If the people themselves have not come up with a person that a truly representative percentage wants to hold that office, wouldn’t it be better to let them wait until they have settled on a well-supported candidate?

On July 31, the Post-Dispatch ran the following letter I had written to the editor:

Society makes a promise to children that no matter their race, ethnicity, or socioeconomic status, every child should have the education necessary to realize his potential. For many children in Saint Louis, however, that promise has been broken.

Saint Louis Public Schools maintains a handful of excellent institutions, but for three years now, the state has deemed the district as a whole to be unworthy of accreditation. State law requires that if a school district fails to maintain accreditation, the students living in that district must be given the opportunity to escape their troubled schools and attend accredited public schools in nearby districts. Just as SLPS was about to lose accreditation in May 2007, however, the elected school board formally urged county school districts to deny admission to any students seeking transfer under this law — and the county districts complied. For three years, many students from Saint Louis have been denied the educational lifeline provided by state law, trapped in failing schools for years they won’t get back.

Thanks to the Missouri Supreme Court, that now seems likely to change. With a 4-3 decision in Turner v. School District of Clayton, the judges ruled that the school districts in Saint Louis County cannot turn away Saint Louis residents seeking admission to their schools.

It also ruled that SLPS must bear the expense of their students’ education and provide transportation.

The court said that when a Missouri school district has clearly failed its students, that district is required to provide access to alternatives.

Many in the county will worry about the potential challenges of integrating kids from Saint Louis into their classrooms. Elected leaders and school officials in the city will complain about the expense of sending students to other school districts. SLPS will argue that without the money those students represent, the district cannot be expected to make the changes necessary to regain accreditation, and that this decision represents the death of public education in Saint Louis.

These arguments overlook what the law and the Missouri Supreme Court did not: Public schools exist to serve the children, not the other way around. Children in Saint Louis have already had their educational progress delayed for too long. Access to better schools cannot wait until the adults straighten out the mess they created. The welcome impact of the Turner decision is that after years of hollow promises that someday all of the students in Saint Louis would enjoy access to high-quality educational opportunities, someday has finally arrived.

Today, another letter to the Post-Dispatch (predictably) responded that the real problem with SLPS is a lack of funding — which the writer attributes to Missouri school districts’ failed attempts to persuade the courts that taxpayers should be spending billions more in school funding. There are, of course, two massive failures of logic in this letter. The first is the notion that students’ academic performance is linked to the amount of money spent by their school district, a point debunked not only by the research of Dr. Michael Podgursky (who happens to be a Show-Me Institute board member), but also by the fact that SLPS maintains some of the very best schools in the state with the same per-student funding it provides to some of the very worst schools in the state.

The second failure is linked to the first. The letter complains about school funding at the state level, but the question at issue is the failing of Saint Louis city’s unaccredited school district. Last year, SLPS spent more than $15,600 per student — far, far above the state average, and on par with the best-performing districts in Saint Louis County. SLPS also maintains a student-to-classroom-teacher ratio of 18 to 1. This means that SLPS has roughly $281,000 to spend for every active classroom in the district. That’s $281,000 per classroom! Even if, say, 40 percent of that money (more than $110,000 per classroom) went to administrative costs, that would leave nearly $170,000 to pay a teacher’s salary (let’s say $60,000) and to properly equip and maintain just that one classroom.

SLPS suffers from a number of ills, but lack of funding is not one of them.

Yesterday’s primary election featured a statewide vote on Proposition C, otherwise known as the Health Care Freedom Act. The bill originated as a proposed amendment to the Missouri Constitution, but when it became clear that the bill could not be brought to a vote in the Senate, its proponents reached a compromise that would allow citizens to vote on it as a statute. The new statute is unlikely to have much legal effect, but it was touted as a way for Missourians to concretely express their opinions about the individual health insurance mandate that serves as the cornerstone for the federal health care reform law adopted by Congress earlier this year.

The Health Care Freedom Act passed with more than 71 percent of the vote, but this alone does not truly tell the story. Primary elections have a different dynamic than general elections, with lower turnouts that can be dominated by one party or another; a measure passing with 71 percent of the vote might not be surprising if, say, the party most likely to favor that measure had far more supporters going to the polls. And, in fact, about 64 percent of those who voted yesterday chose Republican ballots, while only 35 percent chose Democratic ballots. The Health Care Freedom Act was sponsored by and primarily driven by Republicans, and its target was a provision in a bill passed by a Democratic Congress and a Democratic President — so, given the turnout, perhaps the landslide victory for Prop C was just to be expected.

Not so fast.

Looking more closely at the data, it appears that a significant percentage of Democrats also voted in favor of Prop C, presumably indicating dissatisfaction with the individual health insurance mandate. How can we know? Just compare the number of Democratic ballots cast in the race for U.S. Senate (315,787) to the number of votes cast against Prop C (271,102). That means that even if we assume that every person using a Republican, Libertarian, or Constitution Party ballot voted in favor of the Proposition (an unlikely prospect), more than 40,000 people using Democratic ballots also supported the measure. In St. Louis city, at least 29 percent of those casting Democratic ballots voted in favor of Prop C (26,696 Democratic ballots; 18,989 votes against Prop C). In Kansas City, at least 20 percent of those casting Democratic ballots voted in favor of Prop C (20,534 Democratic ballots; 16,383 votes against Prop C). When one considers that it is likely that at least a small percentage of Republican, Libertarian, and Constitution Party voters voted against Prop C, that means that anywhere from 25 percent to 40 percent of Democrat voters statewide probably supported the measure.

There are limits to what yesterday’s vote can tell us. For example, are Prop C’s supporters opposed to all parts of the federal health care law, or just the individual mandate? At a minimum, though, it does seem remarkably clear that Missouri voters have demonstrated a broad and bipartisan opposition to the idea that Congress should force people to purchase health insurance.

One hundred ninety years ago, on July 19, 1820, Missouri’s founders signed the state’s first constitution. It was far from a perfect document — it permitted the abhorrent practice of slavery and prohibited free blacks from moving into the state, among other deficiencies — but the Missouri Constitution of 1820 represents the beginning of self-government and constitutional protections for liberty in this geographical region. As such, it is a critical milestone on the path toward liberty for all Missourians. And, at roughly 9,400 words, it makes for far easier reading than our current 70,000-word monstrosity. I hope you’ll consider looking it over, or — at a bare minimum — that you’ll take a few moments to consider the words of Article XIII, section 16, which provides in part: “That the free communication of thoughts and opinions is one of the invaluable rights of man, and that every person may freely speak, write, and print, on any subject, being responsible for the abuse of that liberty.”

If you happen to be in the St. Louis area and near a radio (or at a computer pretty much anywhere) today around 11:00 a.m., please consider tuning in to KWMU 90.7 FM, where I’ll be a guest on Don Marsh’s Legal Roundtable. We’re planning to discuss a wide range of topics, including recent U.S. Supreme Court decisions, the ruling in the NorthSide redevelopment case here in St. Louis, and some other fascinating and timely legal issues.

I was pleased to see that the Post-Dispatch ran a letter to the editor today that I wrote in response to its recent editorial calling for St. Louis officials to renew efforts to subsidize the NorthSide redevelopment plan. This is the text of the letter:

Developer Should Bear Risk of Failure

In responding to Judge Robert Dierker’s ruling that St. Louis officials lacked authority to offer hundreds of millions of dollars to subsidize the NorthSide redevelopment plan, the editorial board, in the editorial “Celebrating Decline” (July 12), implies that the plan can proceed only if the city provides the anticipated subsidies. The developer’s own estimates indicate a belief that he will realize a profit of at least $251 million even without those subsidies.

Nothing in the ruling prevents the developer from pursuing his quixotic vision or from enjoying any profits that might result from its success; rather, it requires that, like all other entrepreneurs, the developer must personally bear the risks of failure instead of pushing them onto the taxpaying public.

Dave Roland — St. Louis

Policy Analyst, Show-Me Institute

Yesterday morning, Missouri’s lieutenant governor filed suit against the recently passed federal health care reform. It’s difficult to know exactly what to make of certain aspects of this lawsuit, because it assumes the manner in which the federal health care law will function — and it is not clear that the lawsuit’s assumptions are correct. Even if they are correct, however, there are a few issues that may prevent this lawsuit from proceeding. The first is the question of standing. Before a court will consider and rule on a legal issue, plaintiffs must establish that there is a current case or controversy between themselves and any defendants. Where the government is the defendant, this usually means that the government must have taken some act that has caused a harm or detriment to the person filing the lawsuit. It is not usually sufficient simply for a law to be on the books; courts usually (although not always) require that there must have been some implementation of the law before they will address its validity. Also, it is important to remember that plaintiffs cannot generally bring claims on behalf of others.

This lawsuit has eight counts. Several of these assert rights properly belonging to the state of Missouri. The lieutenant governor suggests that because a state statute gives his office the responsibility to be an advocate for the state’s elderly citizens, he has authority to seek relief on behalf of the state government. Similarly, the lawsuit claims that the citizen plaintiffs, as taxpayers, have a right to raise these claims on behalf of the state government. It is possible that courts have previously found citizen taxpayers to have standing to sue on behalf of their state government, but I cannot think of any examples and I do think it unlikely. Thus, I don’t think a court is likely to agree to consider counts one, three, and four. And, even if the court did address them, I question the viability of several of the lawsuit’s assertions in these counts. It may be correct that the federal government has no proper authority to require the state government to adopt certain programs (count one), no authority to compel the state government to make a payment to the federal Department of the Treasury (count three), and no authority to force the state government to increase state taxes in violation of the Missouri Constitution (count four) — but it is not particularly clear that the federal health care law would actually do any of these things. As I have pointed out, the lawsuit assumes that the law will be implemented in a particular way, but we cannot be sure that its assumptions are accurate. This has an enormous bearing on the validity of these claims.

Count two deals with the compensation provided to state officials, so it is at least arguable that the lieutenant governor could have standing to assert the claims of that count. The substance of the claim, however, is dubious. It seems highly unlikely that the federal government is not permitted to impose certain limitations on how the state of Missouri is permitted to compensate its employees. For example, would the state argue that it is not required to pay minimum wage or to comply with anti-discrimination laws? The principles of state sovereignty expressed in count two are, I believe, well made, but they do not necessarily demand a conclusion that the targeted provision of the federal health care law is unconstitutional.

Counts five and six address the individual insurance mandate, which does not even go into effect until 2014. I think the legal arguments in these counts are well-founded, but the claims are premature and will continue to be so until the mandate is actually implemented.

Count seven may actually have some legs. It addresses the provision of special treatment for citizens of certain states, which was incorporated into the health care law in order to secure the votes of certain congressional representatives. The count points out that these exemptions, or “grandfather” provisions, require that the law be applied differently to similarly situated citizens based on nothing other than their geography. That’s a powerful claim, assuming that the law will be implemented in the way that the lawsuit envisions. Those aspects of the statute go into force on Jan. 1, 2011, so it’s possible that the court will be willing to address them.

Count eight attacks the infamous “panels” that are expected to be established to evaluate the appropriate levels of treatment for various health care situations. The lawsuit assumes that these panels will have the power to forbid doctors to provide services to citizens willing to pay for them. If that assumption is correct, this count may have life — if and when the panels are ever constituted and actually issue the anticipated prohibitions. I do not, however, think that a court is likely to assess this claim until those things have taken place.

So, taken as a whole, I think it likely that the court will ultimately dismiss at least half of the claims raised in this lawsuit (and probably three quarters of them) as lacking either standing or ripeness. It is possible that the court will address the merits of counts two and seven. It is difficult to predict how the court will come out on count two, although I think it unlikely that the court will find a constitutional violation. If, however, the federal statute implements the provision targeted by count seven in the manner that the lawsuit anticipates, I think there is a very strong chance that it will be struck down as unconstitutional.

Rand Paul, the newly designated Republican candidate for one of Kentucky’s seats in the U.S. Senate, has taken a lot of flack over the past couple of days as a result of his views on the landmark Civil Rights Act of 1964. MSNBC’s Rachel Maddow spent roughly 15 minutes of interview time with Mr. Paul trying to get him to directly express his belief that the government should not prohibit private business owners from engaging in racial discrimination. Rather than offer a soundbite that would allow political opponents to caricature him as a closet racist or opponent of civil rights, Paul first emphasized all that he found admirable and beneficial about the Civil Rights Act, then tried to express the difference between discrimination as a governmental policy, which he believes to be both abhorrent and unconstitutional, and discrimination as a private choice, which he believes to be both abhorrent and unwise, but beyond the proper authority of government to prohibit.

It’s true that a strict libertarian or free-market perspective might prevent the government from interfering when individuals choose to act in a discriminatory fashion. This may make people uncomfortable. But, as Mr. Paul pointed out, the very idea of freedom requires us to tolerate certain decisions that we might find distasteful, in order to ensure that we have the liberty to make decisions that others might find distasteful. For example: Our nation prizes freedom of expression so much that our constitutions deny governments the authority to restrict or punish speech, even if the ideas expressed are almost universally regarded as offensive. Respect for this form of freedom is so ingrained in our culture that its wisdom is only rarely challenged. Mr. Paul was trying to help Ms. Maddow understand that, similarly, if one believes in individual liberty then one must necessarily be prepared to tolerate the fact that some individuals will use that liberty in ways that others might find offensive.

The proper question, I believe, is how best to deal with those situations when they present themselves. Where speech is concerned, if someone says something offensive, the ideal solution for those offended would be either not to listen to that speaker or to respond with their own speech. Likewise, the best response to discriminatory business establishments would have been for others to boycott the offending establishments and/or to open non-discriminatory establishments of their own. The same principle can be applied to businesses that refuse to hire or promote qualified minority or female applicants. These discriminatory decisions create an opportunity for competing businesses to hire those same applicants — which, presumably, will allow them to offer higher-quality services than the discriminatory employer. The effect might not be immediate, but eventually it will become plain that discrimination is both foolish and costly.

It is also vitally important to remember that governmental power is a double-edged sword. A power that can be used in ways of which you approve can also be used in ways that you find repugnant. The problem of segregation/desegregation is a useful example, because the governmental action at issue represented flip sides of the same freedom-denying coin. In much of the Jim Crow South, segregation was not optional. Those allowed to vote — almost exclusively white people, many of whom had an interest in maintaining a privileged status in society — elected representatives who decided that individual business owners were not permitted to offer a desegregated environment. Thus, all people were forced to live with governmentally enforced segregation. After the Civil Rights reforms were enacted, individual business owners were not permitted to offer a segregated environment — all people were forced to live with governmentally enforced desegregation. At all times, individual citizens had only a limited ability to make these choices for themselves.

In a libertarian or free-market paradigm, the government would not have the authority to dictate these matters to individual in either direction. The government’s sole responsibility would be to ensure that those who sought actively to harm others would be brought to justice and, if necessary, their victims compensated for any demonstrable, quantifiable injuries suffered. Those who believed strongly in the importance of segregation would be permitted to live out their choice — but would also be forced to suffer the disadvantages that would flow from their choice. Those who favored integration would realize a unique competitive advantage that, eventually, would reveal the wisdom of that approach.

To sum up, governmental control over the decisions that individuals may make for themselves presents a seductive shortcut for those who believe that the world ought to be ordered in some particular way. But not only does it represent a denial of individual liberty, a government vested with the power to dictate decisions made by its citizens can very easily turn against those who had hoped to use it to pursue their vision of a “good” society. As George Washington once warned: “Government is not reason; it is not eloquence; it is force! Like fire, it is a dangerous servant and a fearful master.”

As many fans of the Show-Me Institute will already know, I have spent a lot of time during the past six months discussing the questionable constitutionality of Congress’ attempt to punish individual citizens who choose not to purchase government-approved health insurance policies. In fact, I’ll be discussing this issue tomorrow morning between 10:15 and 10:45 on Sarah Steelman’s radio show on KWTO 560-AM in Springfield. You can also listen in online.

Early in this year’s legislative session, members of the General Assembly asked me to offer testimony on the Health Care Freedom Act, which was proposed as a constitutional amendment that would recognize the fundamental right of citizens of Missouri to decide for themselves how they will pay for their health care, and that no government could rightfully interfere with that decision. In my testimony, I pointed out that if courts decided that nothing in the U.S. Constitution prevented the government from mandating the purchase of government-approved insurance policies, a constitutional amendment of the sort contemplated in the Health Care Freedom Act could offer a legal “Hail Mary” — a last line of defense that might prevent further congressional intrusion into citizens’ lives.

Despite overwhelming support in both the House and Senate, the Missouri General Assembly did not agree to let citizens vote on this constitutional amendment. Instead, the legislature placed the original bill’s language into House Bill 1764, which would allow voters an August referendum on adopting a new statute. Many of the legislators and citizen groups who had worked to pass the original bill are now hailing the passage of HB 1764, implying that if the people vote to adopt this statute, it will have the same effect as the proposed constitutional amendment might have. Unfortunately, this is simply not true. Missouri voters may well use this referendum as a political statement through which they can express their opinions about the federal health care reform law, but the text that might have been legally useful as a constitutional amendment will have zero legal effect as a statute.

The text that will be presented at the referendum states, in part: “No law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system.” A court called upon to evaluate whether this provision would be effective against any federal enforcement of the health insurance mandate will first point out that because the language makes no reference to any particular government, it must be assumed to apply only to law- or rule-making subdivisions of the state of Missouri. Not only is it virtually unheard of (and generally futile) for a state statute to attempt to bind the federal government or one of its agencies, the plain text of the bill says nothing to suggest that is its purpose. A court looking at this provision as a statute will almost certainly end its analysis there.

However, even if the court infers that the General Assembly intended to prevent the enforcement of certain federal laws, the statute will fail. In order for the Health Care Freedom Act to have any hope of being effective, it would have to give citizens the basis to argue that health care freedom is a fundamental right beyond any government’s rightful authority to transgress. If the citizen could make that argument, there would be a very slight chance that the U.S. Supreme Court might consider such a fundamental right sufficient to prevent the government from punishing those who chose not to abide by the individual insurance mandate. A statute, however, is not the mechanism by with citizens establish fundamental rights or liberties — they put those in their constitutions, where they are insulated from repeal or avoidance by future legislation. Thus, even if HB 1764 had purported to establish a fundamental right or liberty, courts would have been unlikely to take them seriously. It just so happens that HB 1764 does not even make such an effort, further diminishing any legal usefulness it otherwise might have had.

To be clear, I do not mean to suggest that proponents of the Health Care Freedom Act are intentionally misleading people as to the likely effect of HB 1764. But Missouri’s citizens deserve to know that the bill and the upcoming referendum it authorizes can only be considered a political statement. Even if the people adopt this statute at the August referendum, their rights and liberties will be no more secure than if the bill had been defeated.