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Angela Youngberg

March 23, 2011, marked the first anniversary of the Patient Protection and Affordable Care Act (“PPACA”), but Tennessee recently joined the growing list of states that will not be celebrating. On March 7, both the State Senate and House passed the “Tennessee Health Care Freedom Act” and Governor Bill Haslam signed it into law the next week.

Tennessee joins the ranks of several other states that have managed to pass similar legislation. As enacted, the law is similar in substance to statutes passed in Virginia, North Carolina, Georgia and Louisiana – all variations of the model legislation published by the American Legislative Exchange Council. “Specifically, the new legislation statutorily amends Title 56 of the Tennessee Code Annotated to codify the public policy of Tennessee. It grants to every state citizen the freedom of choice to purchase or decline to purchase healthcare insurance in any form despite federal mandates to the contrary and without fear of penalty,” said Angela Youngberg, attorney with Rainey, Kizer, Reviere, and Bell, PLC of Memphis and Jackson. “At the heart of this new legislation is the General Assembly’s attempt to rebuff the most controversial aspect of PPACA – the ‘individual mandate.’”

To garner the political support necessary to pass the less controversial and more favorable elements of PPACA, Congress had to guarantee insurers and providers that the pool of insured Americans would realize substantial growth and that the rules would be structured to prevent individuals from waiting until they became sick before purchasing insurance. The Congressional response was PPACA’s requirement that, by January 1, 2014, every U.S. citizen and legal resident have qualifying health coverage or pay a penalty.

“Despite the allegations of futility and partisan posturing, the new legislation does carry with it a degree of legal significance,” said Youngberg. “Generally, the legal doctrine of “parens patriae,” literally “parent of the nation,” precludes a state’s attorney general from suing the federal government on behalf of or in defense of the individual state’s citizens.”

This is the argument relied upon by Secretary Kathleen Sebelius in asserting that Virginia’s Attorney General, Kenneth Cuccinelli, lacked the necessary standing to legally challenge the constitutionality of PPACA’s individual mandate – the first of more than 20 ongoing court battles across the nation. General Cuccinelli, however, maintained that he was not defending Virginia’s citizens; rather, he was defending the constitutionality and enforceability of Virginia’s newly enacted “Health Care Freedom Act” from the conflicting effect of an allegedly unconstitutional federal law. The district court hearing the suit agreed with General Cuccinelli and paid little tribute to why the Commonwealth’s legislature passed the new statute, only that the statute was lawfully-enacted and sufficient to trigger General Cuccinelli’s duty to defend it and the sovereign power to enact it.



“The “Tennessee Health Care Freedom Act” is the first step in providing Tennessee’s Attorney General Robert Cooper the necessary means to join other state attorneys general challenging the constitutionality of PPACA,” said Youngberg.

General Cooper, however, has repeatedly expressed his hesitation to draw Tennessee into the national legal fight. “As early as February 2010 in anticipation of President Obama’s signing of PPACA, Tennessee legislators from both the House and Senate began proposing various bills allegedly to protect Tennesseans from the looming individual mandate,” said Youngberg. “Although each bill contained language similar to the newly enacted legislation, at least one version included a provision requiring the state attorney general to immediately defend the state and its citizens from inconsistent federal legislation.”

In April of 2010, General Cooper responded to the request of certain Democratic Senators for an official opinion as to whether such legislation was constitutional. “General Cooper concluded that the proposed state law was preempted by PPACA pursuant to the U.S. Constitution’s Supremacy Clause, thereby rendering invalid the subsequent requirement that he challenge the federal legislation. Furthermore, General Cooper has taken the position that Tennessee will be bound by or receive the benefit of the final decision regardless of whether the state participates in ongoing suits or files its own,” said Youngberg. “According to General Cooper, such a legal challenge would be costly to taxpayers but provide no additional benefit. This stance, however, has generated an unexpected outcome. Disgruntled House and Senate representatives have now introduced a proposed amendment to Tennessee’s Constitution that would provide for a statewide election of the Attorney General rather than by the state Supreme Court’s appointment.”

Besides providing standing for a potential court battle, the new law likely lays the foundation for another piece of less discussed and more ambitious legislation known as the “Health Care Compact” sponsored by Sen. Mae Beavers. This law would permit Tennessee to participate in a multi-state waiver program whereby the member states, with Congressional approval, draft state healthcare laws that supersede federal healthcare laws, including PPACA, while obtaining complete autonomy over federally issued healthcare funds. Critics maintain that it is highly unlikely Congress will allow the states to wield complete control over federal healthcare funds without recognizing correlating federal laws and regulations.

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