Countdown to Repealing Obamacare

The states are embracing federalism once again, and we have Obamacare to thank for it. 
Several states have decided to push back against Washington’s takeover of the healthcare system and its expanding control over areas that neither Congress nor federal agencies have any constitutional authority to deal with.

The effort getting the most media attention comes from 20 states, led by Florida Atty. Gen. Bill McCollum, a Republican gubernatorial candidate, who have filed a lawsuit challenging the constitutionality of Obamacare’s individual mandate that requires Americans to buy health insurance or pay a penalty. 

The states so far participating in the attorneys’ general lawsuit are: Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Colorado, Michigan, Pennsylvania, Washington, Idaho, South Dakota, Indiana, North Dakota, Mississippi, Nevada, Arizona, Georgia and Alaska.

Along with other issues cited in the lawsuit, these states point out that Obamacare will add millions of Americans to Medicaid, the federal-state health insurance program for the poor. States are already struggling from lower tax revenues and will eventually have to shoulder billions of dollars in federally imposed costs to cover the new Medicaid enrollees.
NFIB on Board

And now the National Federation of Independent Business (NFIB), which represents some 350,000 small-business members, has decided to join the suit. That’s an important development. The NFIB was much too quiet in the early days of the healthcare reform debate. Now the organization has come to realize how bad the legislation will be for small businesses and has decided to fight it in court. 

But challenging the constitutionality of Obamacare isn’t the only way states are demonstrating their independence. The American Legislative Exchange Council (ALEC), a membership organization of conservative state legislators, has been working with states to adopt model legislation known as the Freedom of Choice in Health Care Act. So far some 38 states (see box) have filed or prefiled the legislation and three states—Idaho, Virginia and Arizona—have already passed it in their legislatures. 

The act prohibits a state’s citizens from being required to have health insurance or penalized if they don’t. 

According to Christie Herrera, Health and Human Services Task Force director at ALEC: “The bad news for the President and congressional leaders is that conservatives have ‘big mo’ on our side. We’ve seen a groundswell of grassroots activists who are driving anti-Obamacare initiatives in the states, and who are motivated to elect conservative candidates who will continue that legacy.”

And more states will likely join the effort soon. For example, several state legislatures did not meet this year and so couldn’t introduce or pass the legislation. But lawmakers in Texas, Montana and Utah have indicated their intent to introduce the legislation when their state legislatures meet next year. In Colorado, the Independence Institute, a conservative think tank, is leading a ballot initiative so that citizens can vote on whether or not to fight Obamacare, since the Democratic-controlled statehouse won’t do it.

Some states are part of both efforts—challenging the constitutionality of the health insurance mandate and attempting to pass the Freedom of Choice Act—an overlap that actually enhances the fight. The Freedom of Choice in Healthcare Act puts the weight of a state’s legislature and citizens behind the effort, not just one elected official as in the lawsuit. Democrats cannot argue that the public supports Obamacare when the large majority of states are doing so much to fight it.

While some Republicans want to “repeal and replace” Obamacare, that effort will take time—and probably a new President who would sign the repeal. States, by contrast, are already taking the lead. Initially, Democrats and the media dismissed the states’ responses as silly and doomed to defeat. But several constitutional scholars have weighed in and it is clear that Obamacare raises serious constitutional issues.

As Supreme Court Justice Antonin Scalia wrote in Printz v. New York: “The federal government may neither issue directives requiring the states to address particular problems, nor command the states’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved and no case-by-case weighing of the burdens or benefits is necessary. Such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

Legal experts indicate that the widespread opposition at the state level greatly strengthens the chance the Supreme Court will hear the case—and decide in favor of freedom and a constitutionally limited government. Declaring the individual mandate unconstitutional would have a significant negative impact on Obamacare. It might not kill the beast, but it would be severely wounded. More importantly, it may force Congress and the Obama Administration to reconsider whether the Constitution, the states or the public will accept their power-grab unchecked.