Will SQ 756 Really Allow Oklahomans To Opt Out Of Federal Health Care Law?

By Amy Lester, Oklahoma Impact Team

Oklahoma City -- It's almost time for voters to cast their ballots on State Question 756, the so-called opt out of President Obama's health care law. But, some say, even if it passes, it won't make a difference.

"No state can selectively enforce or opt out of various federal laws, including Oklahoma," said Governor Brad Henry.

Governor Henry vetoed bills relating to opting out last session. When the legislature could not override his veto, supporters pushed for a state question, to let voters decide.

See how State Representatives voted |See how Senators voted

"I think ultimately the people of Oklahoma need to have a voice in this critical issue," said Senator Dan Newberry, the author of the senate joint resolution that led to the state question.

State Question 756 would amend the state constitution to say a law cannot force any "person, employer or health care provider to participate in any health care system." It also will say Oklahomans "shall not be required to pay penalties or fines for paying directly for lawful health care services."

Newberry says if this passes, it will send a message to Congress and the President.

"It would be my hope that Washington would realize that they are overstepping their bounds and they would listen to the states when we are screaming at the top of our lungs that this is not right and that they would repeal it," said Newberry.

But, constitutional law experts say this state question won't allow Oklahomans to opt out.

"Under the federal constitution, there's the supremacy clause and the supremacy clause makes federal law supreme," said Joseph Thai, presidential professor of law at the University of Oklahoma.

Thai insists there are 200 years worth of Supreme Court decisions that back Congress up, allowing this kind of regulation.

"Congress has very broad powers to regulate the national economy, including any activity that has a substantial effect on the economy, and, it's pretty clear that health care is an area in which Congress has commerce power to regulate," said Thai.

If passed, Thai says most likely, the federal government will come after Oklahoma, forcing the state into a legal battle. It's a battle Thai and Governor Henry don't think the state will win.

"We can pass the state question, it's going to cost us untold dollars, tax dollars in litigation costs and ultimately I believe, we'll lose," said Governor Henry.

But, Senator Newberry believes the state would win, since he thinks the health care law is unconstitutional. He also knows of lawyers who would be willing to defend the state for free. He says a legal battle wouldn't cost as much as opponents think.

"I don't think there's a cost out there that we need to be scared of in protecting our civil liberties and rights as a state," said Newberry.

There's no guarantee that the Attorney General would use the lawyers Newberry suggests. A spokesperson from the Attorney General's office tells us, in a lawsuit, the state could face thousands of dollars in court costs.

A federal judge in Michigan recently ruled the federal government can require everyone to have health insurance. Voters in Arizona will also decide on a similar opt out amendment to their state's constitution, in November.

Read the full text of State Question 756 | Read the full text of all state questions