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By Janet Zink July 13, 2011

Mike Haridopolos says Florida law could allow state to 'opt out' of federal health care plan

One of Florida Senate President Mike Haridopolos’ first acts in the 2011 legislative session was to sponsor and shepherd through a proposed constitutional amendment targeting the federal health care law.

Sponsorship of the resolution is useful for Haridopolos -- a Republican from Merritt Island who is running for the U.S. Senate -- when talk turns to what Republicans derisively call "ObamaCare."

He touted that work recently on Twitter, tweeting on June 29: "Proud to support this amendment that will allow Floridians to opt out of Obama’s govt. takeover of healthcare!"

Whether or not the federal health care legislation is a "govt. takeover of healthcare!" is the subject of a previous fact-check that earned a Pants on Fire ruling and was PolitiFact's Lie of the Year in 2010.

But we did wonder: If 60 percent of Florida voters support Haridopolos’ amendment when it appears on the ballot in November 2012 and the Health Care Freedom Act becomes part of Florida’s Constitution, what effect will it have on implementation of the federal Patient Protection and Affordable Care Act in the state?

Would it really "allow Floridians to opt out" of it?

To answer the question, we went to the American Legislative Exchange Council, which publishes "A Legislators Guide to Repealing ObamaCare." ALEC also crafted the model legislation that is the foundation of Haridopolos’ amendment.

At least 42 states have passed or are considering similar laws, according to ALEC.

But the organization says that the state laws and constitutional amendments have no immediate impact on implementation of the federal Affordable Care Act. They only pave the way for a court battle, should the law ultimately be ruled constitutional by the U.S. Supreme Court.

"Does it allow Floridians to opt out if it’s successful? Yes," said Christie Herrara, director of ALEC’s health task force. "A lawsuit would have to be filed."

The "opt out," in that case, would come as the result of a legal challenge by states that would argue their constitutions prohibit the implementation of the federal health care law.

But it’s a long shot any federal court would side with the states’ argument.

"There is a whole body of case law that is very consistent," said Barry Richard, a Tallahassee-based constitutional law attorney who represented George W. Bush in the 2000 vote recount. "This is not a close call."

Lawyers and legal scholars say the states’ challenge would be tossed aside because of Article VI of the U.S. Constitution, and a paragraph known as the supremacy clause.

Specifically, the clause states that the U.S. Constitution, and federal treaties and laws are the "supreme Law of the Land." It requires state judges to follow federal law in any conflict with state laws or constitutions.

In this situation, the federal law requires that people have health insurance, a provision commonly called the "individual mandate."

Haridopolos’ amendment to the Florida Constitution would prohibit laws that compel people to have health care coverage.

"This is precisely what the supremacy clause was meant to deal with, when you have the federal government saying one thing and the state saying something else," said Mike Allen, a constitutional law professor at Stetson University in Gulfport.

It would be impossible to comply with both laws at once, he said. And in such instances, he said, the federal law almost always wins.

That’s necessary, says Steve Valdeck, a law professor at American University, to preserve the structure of the U.S. government.

"I think we have settled the question that the Constitution makes the federal government supreme over the states. If one state could decide on its own they want to withdraw from a federal law, there’s nothing to stop other states from doing it," Valdeck said. "Pretty soon you’ve destroyed the central premise on which our country is founded, which is a central federal government."

Now there is one scenario in which Haridopolos’ amendment could protect Floridians from an individual mandate.

If the U.S. Supreme Court ultimately rules in favor of the 26 states suing to stop implementation of the individual mandate, Florida’s constitutional amendment would be moot as far as federal health care reform is concerned.

But, the state constitutional amendment would prohibit future state Legislatures from enacting an individual mandate if they ever decide to put forward their own health care plan, as Massachusetts did.

But Haridopolos didn’t mention protecting Floridians from a state law. He referred specifically to Obama and the federal law.

Bottom line: All the state constitutional amendment guarantees is standing for a lawsuit against the federal government. Floridians could only "opt out" of the Affordable Care Act’s individual mandate if the U.S. Supreme Court rules against the supremacy of the federal law.

That’s a major, gigantic if. There’s at least a remote enough chance that the court would rule in favor of Florida in a lawsuit, so Haridopolos’ statement doesn’t warrant a Pants On Fire ruling. However, it’s clearly False.

Featured Fact-check

Our Sources

Mike Haridopolos Twitter account, June 29, 2011

Interview with attorney Barry Richard, July 7, 2011

Interview with Mike Allen, profess of law at Stetson University, July 7, 2011

Interview with Steve Valdeck, professor of law at American University, July 8, 2011

State Legislators Guide to Repealing ObamaCare, accessed July 8, 2011

Model legislation from the American Legislative Exchange Council, accessed July 8, 2011

Goldwater Institute Health Care Freedom Act Q&A, accessed July 8, 2011

Florida’s Health Care Freedom Act, accessed July 8, 2011

The U.S. Constitution, accessed July 8, 2011

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Mike Haridopolos says Florida law could allow state to 'opt out' of federal health care plan

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