Testimony: ‘Tilting at a windmill’

Bruce Bistline, a Boise attorney who said he’s handled several constitutional law cases, told the House State Affairs Committee, “I’m a little confused about what’s happening here today.” He said the health care reform law was passed by Congress. “It seems like we’re here arguing about whether it’s good law or bad law,” he said. But he said HB 117 says Idaho state employees and Idaho companies don’t have to follow the law. “I have a hard time distinguishing ‘nullify’ from ‘void and have no effect.’ It seems like it’s the same thing to me,” he said.

Bistline said if Idaho feels the law is unconstitutional, it had the option to litigate it in federal court in Idaho, and ask a federal judge to enjoin the law here. “But we didn’t do that,” he said. The situation, he said, is a “confusing mess.” He told lawmakers, “You’re putting people in a quandary as to whether to follow the federal law or to follow a state law which itself may be unconstitutional.” He also drew a distinction between Idaho’s action in 2005 on the federal “Real ID” law and this issue. “Real ID was not a nullification situation,” he said. The federal law included a provision allowing states to opt out, which Idaho did, he said. “I believe you’re essentially tilting at a windmill that will get you nowhere,” Bistline told lawmakers.