If enough states act, we are on the way to a constitutional showdown over Obamacare. The Washington Times reports Missouri bill would gut Obamacare
Next month, the Missouri Senate will consider a bill which would effectively cripple the implementation of the Affordable Care Act within the state.
Following the lead of South Carolina, where lawmakers are fast-tracking House Bill 3101 in 2014, and Georgia, where HB707 was recently introduced by Rep. Jason Spencer, Missouri State Senator John T. Lamping (R-24) pre-filed Senate Bill 546 (SB546) to update the Health Care Freedom Act passed by Missouri voters in 2010. It passed that year with more than 70% support.
SB546 would ban Missouri from taking any action that would “compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system.” That means the state would be banned by law from operating a health care exchange for the federal government.
The bill also proposes suspending the licenses of insurers who accept federal subsidies which result in the “imposition of penalties contrary to the public policy” set forth in the legislation. Since it is unlikely that any insurer would then accept a subsidy, not a single employer in the state could be hit with the employer-mandate penalties those subsidies trigger.
Following significant portions of the Tenth Amendment Center’s four-step plan to nullify Obamacare on a state-level, Fox News Senior Judicial Analyst Judge Andrew Napolitano noted that such actions were not just legal, but effective.
“If enough states do this, it will gut Obamacare because the federal government doesn’t have the resources … to go into each of the states if they start refusing,” he said.
Tenth Amendment Center national communications director Mike Maharrey suggested that a large-scale effort against the Act would be coming. “Our sources tell us to expect at least ten states moving in this direction in the coming months. But that will only come true if people start calling their state representatives and senators right now. State lawmakers need to know they should introduce bills to ban the state from participating in any Obamacare programs.”
Inquiring minds are investigating the Nullify Obamacare website for further information.
States have always held the prerogative of whether or not they will enforce or participate in federal acts or regulatory programs. This legislative package seeks to ban the state from enforcing or assisting in the enforcement of the federal Patient Protection and Affordable Care Act of 2010. It also seeks to ban the State, along with all its political subdivisions, from operating or participating in the operation of a health care exchange under the federal act. It also provides for penalties for violations of the act.
Step 1: Ban State Enforcement, Participation and Material Support
Step 2: Reject Medicaid Expansion
Step 3: Protect Residents from Mandates
Step 4: Challenge the IRS’s illegal ObamaCare taxes
The “approach is on sound legal footing”
-Mercer University law professor David Oedel, part of the legal team that represented Georgia in its court challenge to Obamacare
There is a long-standing legal tradition which supports the choice of the State to determine whether or not they will participate in a federal act.
James Madison, writing in Federalist #46, recommended state responses to “unwarrantable” (unconstitutional) or merely “unpopular” federal acts which included “a refusal to cooperate with officers of the Union.”
Supported by Supreme Court opinions spanning more than 150 years, the “anti-commandeering doctrine” is the legal principle that states are not required to help the federal government enforce federal acts or regulatory programs.
The cases are as follows:
* 1842 Prigg: The Court held that states were not required to enforce federal slavery laws.
* 1992 New York: The Court held that Congress could not require states to enact specified waste disposal regulations.
* 1997 Printz: The Court held that “the federal government may not compel the states to enact or administer a federal regulatory program.”
* 2012 Sebelius: The Court held that states could not be required to expand Medicaid even under the threat of losing federal funding.
Anti-commandeering is virtually undisputed by legal experts from both the left and right.
A number of states following this plan will “gut Obamacare.”
-Judge Andrew Napolitano on Fox News, 12-10-13
For more details on each of the steps, please see Model Legislation: Nullify Obamacare in 4 Steps
How Would Obama Respond?
Regardless of the constitutionality of this action by states, how could Obama act in response?
I suppose Democrats could cut off various state funding. But that would take a Democratic controlled Congress (and its pretty safe to assume that’s not going to happen).
Would the Federal government setup health exchanges in states? With what funding?
This could get interesting if even three states nullify Obamacare, and allegedly 10 states are considering such action.
Mike “Mish” Shedlock