Is Tennessee's narrower Health Care Freedom Act bill (HB 2622/SB 2560) constitutional?

Plain-English summary

This is the companion opinion to 10-43 (issued six days earlier). The legislature was considering several different vehicles to push back on the federal individual health-insurance mandate. Opinion 10-43 analyzed the broader Tennessee Health Freedom Act (SB 3498/HB 3433) and HJR 745, both of which would have purported to nullify federal penalties against private actors inside Tennessee. The AG concluded those measures were preempted.

HB 2622/SB 2560 is structurally different. It would add a single new section to Title 56, Chapter 7, Part 10 of the Tennessee Code stating that the people of Tennessee have a right to enter into private contracts with health care providers and to purchase private health care coverage, and prohibiting "the legislature" from requiring participation in any health care system or imposing penalties on those who decline. Because the bill addresses the legislature itself (a State actor) rather than purporting to block enforcement of federal law against private actors, the AG concluded it does not conflict with the federal Affordable Care Act. Compliance with both federal law and state law would be possible, and the bill would not obstruct congressional objectives.

There is one constitutional defect the AG flagged: the bill says "[t]he legislature shall not require any person to participate in any health care system or plan, nor shall it impose a penalty or fine." That language attempts to bind future General Assemblies. Under Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. Ct. App. 2001), one legislature cannot statutorily restrict the policy choices of a subsequent legislature. Only the Tennessee Constitution can do that. If the language is rewritten to apply to existing or future statutory action without purporting to limit future legislative authority itself, the bill would survive constitutional review.

This opinion is part of the early-ACA legislative debate. Read alongside 10-43, it shows how the AG distinguished between (i) state laws that try to override federal law for private actors and (ii) state laws that simply express policy and constrain the state's own administrative behavior.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Supreme Court's decisions in NFIB v. Sebelius, 567 U.S. 519 (2012), and California v. Texas, 593 U.S. 659 (2021), and the 2017 Tax Cuts and Jobs Act's zeroing-out of the individual mandate penalty, have substantially changed the federal-health-care preemption landscape. Tennessee enacted a Health Care Freedom Act in 2011 (Public Chapter 115). The mechanics of any current Tennessee-federal health-coverage conflict turn on the present statutory text, not on what the proposed 2010 bills would have said.

Common questions

Q: How is HB 2622/SB 2560 different from SB 3498/HB 3433?
A: SB 3498/HB 3433 (the Health Freedom Act analyzed in 10-43) directly targeted the federal mandate. It prohibited any state official from enforcing federal penalties on Tennesseans and authorized the AG to sue the federal government. HB 2622/SB 2560 is much narrower: it only restricts what the Tennessee legislature itself can do. It does not purport to block federal enforcement of federal law.

Q: Why does that difference matter for preemption?
A: The Supremacy Clause prohibits state law that conflicts with federal law or that obstructs congressional purposes. SB 3498/HB 3433 directly forbade enforcement of federal penalties, which is a head-on collision with federal law. HB 2622/SB 2560 just says Tennessee won't add its own state-level mandate or state-level penalty. Tennesseans would still be subject to whatever federal penalties Congress imposes; the bill doesn't try to stop that. So no preemption conflict.

Q: What is "legislative entrenchment" and why is it unconstitutional?
A: One General Assembly cannot enact a statute that ties the hands of a future General Assembly on matters of policy. That is the rule from Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. Ct. App. 2001), and the older Daughtery v. State, 20 S.W.2d 1042 (Tenn. 1929). Only constitutional provisions can constrain future legislatures. A statute that says "no future legislature shall pass a law doing X" is unenforceable as to a future legislature that decides to pass such a law.

Q: Can the entrenchment defect be fixed?
A: Yes. If the bill is rewritten to state Tennessee's current policy without purporting to bind future legislative action, the constitutional defect disappears. The AG opinion expressly says "[i]f the language of the bill which purports to limit the authority of future General Assemblies to pass legislation were appropriately modified, it is our opinion that the bill would survive constitutional scrutiny."

Q: If a future Tennessee legislature wanted to mandate state-level health coverage, could it?
A: Subject to other constitutional constraints, yes. Even if HB 2622/SB 2560 had been enacted as drafted, the entrenchment language would not in fact prevent a future General Assembly from passing a contrary statute. The earlier statute simply could not constrain the later one.

Q: Is this opinion still relevant after the 2012 NFIB v. Sebelius decision?
A: The opinion's specific federal-preemption analysis is somewhat dated because the federal individual mandate's penalty was zeroed out in 2017 and the Supreme Court has substantially rewritten ACA doctrine since. But the entrenchment analysis (one legislature cannot bind a future one) is general Tennessee constitutional law and remains good law.

Background and statutory framework

HB 2622/SB 2560 proposed adding the following section to Tenn. Code Ann. Title 56, Chapter 7, Part 10:

The people of Tennessee have a right to enter into private contracts with health care providers for health care services and to purchase private health care coverage. The legislature shall not require any person to participate in any health care system or plan, nor shall it impose a penalty or fine, of any type, for choosing to obtain or decline health care coverage or for participation in any particular health care system or plan.

Two parts of the AG's analysis are important.

1. Legislative entrenchment. The bill's directive to the legislature itself (that the legislature "shall not require" mandatory participation and "[shall not] impose a penalty or fine") is the entrenchment defect. Under Tennessee constitutional doctrine, one General Assembly cannot bind another on questions of legislative policy. The leading case is Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. Ct. App. 2001), which in turn quoted the much older Daughtery v. State, 20 S.W.2d 1042 (Tenn. 1929): "Each successive General Assembly is a law unto itself in this regard. It is constitutional, and not statutory, prohibitions which bind the legislature. The creator is greater than its creations."

The structural reason is Article II, § 12 (each house of the General Assembly determines its own rules) and Article II, § 22 (each house has all powers necessary for a legislature of a free state). A statute that tries to override those constitutional grants by binding future legislative policy choices is itself unconstitutional.

The fix is straightforward: state the policy without trying to bind the future. A statute that simply declares Tennesseans' right to private contracts and prohibits state administrative action that would penalize private contracting would have no entrenchment problem. Future legislatures could repeal it, but until they did, it would be valid law.

2. Federal preemption. The AG distinguished HB 2622/SB 2560 from SB 3498/HB 3433 (analyzed in Op. 10-43) on the ground that HB 2622/SB 2560 only constrains state action. It does not block enforcement of federal law on Tennessee residents. Under the standard preemption framework (express, field, conflict, or obstacle preemption), none of those branches applies to a state law that simply declines to add state-level penalties.

The federal Patient Protection and Affordable Care Act imposes federal duties directly on individuals (the mandate to maintain "minimum essential coverage") and on large employers (the shared-responsibility assessment). HB 2622/SB 2560 does nothing to obstruct those federal duties. A Tennessean subject to the federal mandate would still owe whatever federal penalty applies. The bill merely says Tennessee itself will not add a parallel state-level mandate or penalty. That is precisely the kind of state-policy choice the federal Act does not displace.

The opinion treats this distinction as decisive. Op. 10-43 (issued April 6) concluded that the broader Health Freedom Act was preempted because it told state officials not to enforce federal penalties. Op. 10-47 (issued April 12) reaches the opposite conclusion on HB 2622/SB 2560 because that bill does not interfere with federal enforcement at all.

Citations and references

Statutes:

• Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (2010)
• Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152

Constitutional provisions:

• U.S. Const. art. VI, cl. 2 (Supremacy Clause)
• Tenn. Const. art. II, § 12 (Legislature determines own rules)
• Tenn. Const. art. II, § 22 (Powers of each House)
• Tenn. Const. art. III, § 18 (Gubernatorial inaction on a bill)

Cases:

• Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. Ct. App. 2001)
• Daughtery v. State, 159 Tenn. 573, 20 S.W.2d 1042 (1929)

Related Tennessee AG opinions:

• Op. Tenn. Att'y Gen. 10-43 (April 6, 2010) (analyzing the broader SB 3498/HB 3433 and HJR 745)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-047.pdf

Original opinion text

April 12, 2010

Opinion No. 10-47

Constitutional validity of HB 2622/SB 2560 relative to health care coverage

QUESTION

Is House Bill 2622/Senate Bill 2560 constitutionally valid?

OPINION

Yes, with the exception of the language in the bill that would purport to limit the power of future General Assemblies to pass legislation.

ANALYSIS

House Bill 2622/Senate Bill 2560 would enact the "Health Care Freedom Act." It would amend Title 56, Chapter 7, Part 10 of the Tennessee Code by adding the following new section:

56-7-10_. The people of Tennessee have a right to enter into private contracts with health care providers for health care services and to purchase private health care coverage. The legislature shall not require any person to participate in any health care system or plan, nor shall it impose a penalty or fine, of any type, for choosing to obtain or decline health care coverage or for participation in any particular health care system or plan.

As we read the bill, it would prohibit the Tennessee General Assembly from implementing a mandated health care system or plan and from imposing a penalty for nonparticipation in any such system or plan.

As a threshold matter, we note that the bill unconstitutionally would purport to restrict the power of a subsequent General Assembly to pass legislation. While the Legislature may bind itself to statutory provisions, it may not bind a subsequent General Assembly. Mayhew v. Wilder, 46 S.W.3d 760, 770 (Tenn. Ct. App. 2001), perm. to app. denied (2001). In Mayhew, the Tennessee Court of Appeals stated, in pertinent part:

As a general proposition, "[o]ne legislature cannot restrict the power of its successor, at least on general questions of policy," 72 Am.Jur.2d States, Territories and Dependencies § 40 (1974). In Daughtery v. State, 159 Tenn. 573, 20 S.W.2d 1042 (1929), the plaintiff challenged a statute on the ground that the Legislature did not comply with a state code section outlining the procedure to be followed when the Governor held a bill for more than five days without signing it. Because the Constitution provided in Article 3, Section 18 that a bill automatically became law if the governor held it for more than five days, the court said, "[E]ach successive General Assembly is a law unto itself in this regard. It is constitutional, and not statutory, prohibitions which bind the legislature. The creator is greater than its creations." 20 S.W.2d at 1043. Binding the Legislature with procedural rules passed by another General Assembly would violate Article II, Section 12's grant of the right to the Legislature to determine its own rules and Article II, Section 22's provision that each House has all the powers necessary for a branch of the Legislature of a free state.

46 S.W.3d at 770 (emphasis in original).

If the language of the bill which purports to limit the authority of future General Assemblies to pass legislation were appropriately modified, it is our opinion that the bill would survive constitutional scrutiny. It would violate no provision of the Tennessee Constitution. Its prohibitions appear to be directed only at the State, and thus it is not contrary to the mandatory obligations imposed by the federal Patient Protection and Affordable Care Act, Pub. Law No. 111-148 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. Law No. 111-152. If HB 2622/SB 2560 were enacted, adherence to both federal and state law would be possible. Finally, the bill would not appear to impede the achievement of the objectives of Congress as stated in the federal Act. Accordingly, unlike amended Senate Bill 3498, House Bill 3433, and House Joint Resolution 745, the constitutional validity of which we have recently questioned, Op. Tenn. Att'y Gen. 10-43 (April 6, 2010), the bill would not be preempted by federal law and thus in violation of the Supremacy Clause of the United States Constitution.

ROBERT E. COOPER, JR.
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

SUE A. SHELDON
Senior Counsel

Requested by:

Honorable Henry Fincher
State Representative
32 Legislative Plaza
Nashville, Tennessee 37243-0142

Honorable Jimmy Naifeh
Speaker Emeritus
Suite G19A War Memorial Building
Nashville, Tennessee 37243

Honorable Charles Curtiss
State Representative
34 Legislative Plaza
Nashville, Tennessee 37243-0143