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H.B. 391






Chief Sponsor: Jacob L. Anderegg

Senate Sponsor: ____________

             8      LONG TITLE
             9      General Description:
             10          This bill amends the governor's programs related to the Health System Reform Act.
             11      Highlighted Provisions:
             12          This bill:
             13          .    declares the Patient Protection and Affordable Care Act null and void in the state of
             14      Utah.
             15      Money Appropriated in this Bill:
             16          None
             17      Other Special Clauses:
             18          None
             19      Utah Code Sections Affected:
             20      ENACTS:
             21          63M-1-2508, Utah Code Annotated 1953
             23      Be it enacted by the Legislature of the state of Utah:
             24          Section 1. Section 63M-1-2508 is enacted to read:
             25          63M-1-2508. Nullification of federal health care reform.
             26          (1) The Legislature finds that:
             27          (a) the people of the several states comprising the United States of America created the

             28      federal government to be their agent for certain enumerated purposes, and nothing more;
             29          (b) the Tenth Amendment to the Constitution of the United States defines the total
             30      scope of federal power as being that which has been delegated by the people of the several
             31      states to the federal government, and all power not delegated to the federal government in the
             32      Constitution of the United States is reserved to the states respectively, or to the people
             33      themselves; and
             34          (c) the assumption of power that the federal government has made by enacting the
             35      Patient Protection and Affordable Care Act interferes with the right of the people of the state of
             36      Utah to regulate health care as they see fit, and does not comply with the assurance in The
             37      Federalist Papers, No. 45 (James Madison), that the "powers delegated" to the federal
             38      government are "few and defined," while those of the states are "numerous and indefinite".
             39          (2) The Legislature declares that the federal law known as the Patient Protection and
             40      Affordable Care Act is not authorized by the Constitution of the United States and violates the
             41      constitution's true meaning and intent as given by the founders and ratifiers of the constitution,
             42      and is hereby declared to be invalid in this state, shall not be recognized by this state, is
             43      specifically rejected by this state, and shall be considered null and void and of no effect in this
             44      state.

Legislative Review Note
    as of 2-28-13 6:17 AM

As required by legislative rule and practice, the Office of Legislative Research and General
Counsel provides the following legislative review note to assist the Legislature in making its
own determination as to the constitutionality of the bill. The note is based on an analysis of
relevant state and federal constitutional law as applied to the bill. The note is not written for the
purpose of influencing whether the bill should become law, but is written to provide
information relevant to legislators' consideration of this bill. The note is not a substitute for the
judgment of the judiciary, which has authority to determine the constitutionality of a law in the
context of a specific case.

This bill declares that the Affordable Care Act, which was passed by Congress, signed by the
President, and major portions of which were upheld as constitutional by a majority of the
United States Supreme Court, is invalid and without effect in the state of Utah because it
violates the true meaning of the Constitution of the United States.

The United States Supreme Court has determined that at least parts of the Affordable Care Act

are constitutional. See Nat'l Federation of Business v. Sebelius, Sec'y of Health and Human
, 132 S. Ct. 2566 (2012). Specifically, the Court determined that the individual
mandate and optional expansion of Medicaid was constitutional. There is a high probability
that a court would rule that the state's nullification of the Affordable Care Act is without effect
because a state cannot circumvent a federal court ruling. In Cooper v. Aaron, 358 U.S. 1, 18-19
(1958), the Supreme Court asserted that if "the legislatures of the several states may, at will,
annul the judgments of the courts of the United States, and destroy the rights acquired under
those judgments, the constitution itself becomes a solemn mockery."

The ability of the state to nullify the portions of the Affordable Care Act that have not been
ruled upon by a court is uncertain. The asserted power to nullify federal statutes is largely
based on the compact theory of the union which argues that the United States was formed by a
compact between and agreed upon by the states. In Bush v. Orleans Parish School Bd., 188 F.
Supp. 916, 923 (E.D. La. 1960) aff'd, 365 U.S. 569 (1961), the court admitted that the compact
theory may have had some validity when the states were operating under the Articles of
Confederation, but that upon "their [the Article's] failure, however, 'in Order to form a more
perfect Union,' the people, not the states, of this country ordained and established the
Constitution." Bush, 188 F. Supp. at 923. With the disavowal by the federal courts of the
compact theory, the retention by the states of the authority to nullify federal statutes is likely to
be in question.

Office of Legislative Research and General Counsel

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