There are four main steps that should be taken to nullify the Affordable Care Act on a state level. While each one of these steps alone won’t result in a nullification of the act nationally, they’re all an important piece of the puzzle. An act of resistance in one state leads to courage and doing the same in another. At the same time, some courageous types might get the notion that they can turn it up a notch and take a stronger stand in their state than you have in yours.
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.
FOUR STEPS (links open in new window)
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
It is our view that passage of this legislation will have great practical effect on the implementation of the Patient Protection and Affordable Care Act of 2010 within the states.
The greatest impact will be a result of banning the State from implementing the federal act or participating in its implementation.
Banning state cooperation across the board will render the federal act the weakest as can be done by the state, setting the stage for other states to do the same. Not only will this leave the proverbial “ball in the court” of the federal government, it’s widely acknowledged that the federal government lacks the manpower and resources to operate these exchanges in all 50 states.
Banning the operation of a health care exchange would also have practical impact by forcing the federal government to find ways to operate the exchange itself, and by creating a path for a strong lawsuit against the federal government.
The federal act authorizes Exchange subsidies only through state-established Exchanges, not the 34 Exchanges created by the federal government, or those created in a partnership.
Since those subsidies trigger penalties under both the employer mandate and individual mandate, those states have by law also exempted all of their employers and individual residents from those penalties. The IRS, though, is still trying to impose those taxes and issue those subsidies in states which have banned the creation of exchanges, the basis for the current lawsuits.
Under the anti-commandeering doctrine, this legislative proposal stands on extremely strong legal footing. The states are not required to assist the federal government. The Supreme Court has repeatedly held that states can, in essence, “opt-out” and leave enforcement to the federal government.
And, by following the advice of the “Father of the Constitution,” with “a refusal to cooperate with officers of the Union” on federal acts considered unconstitutional or merely unpopular, the states would lead the nation in bringing an end to the Patient Protection Affordable Care Act of 2010.
GET THE LEGISLATION HERE