Obamacare can still be stopped.
And no, it’s not going to be stopped by McConnell and Boehner – or Roberts and Scalia. It’s going to be stopped by people like you – pressing your state to resist. In fact, Obamacare’s ability to become reality in the long term is like a house of cards. The act is not viable economically and unstable politically. The only way it can gain a foothold at this point is through compliance in the states. Resistance will kill it.
A NUMBER OF STATES FOLLOWING THIS PLAN WILL “GUT OBAMACARE.”
-Judge Andrew Napolitano on Fox News, 12-10-13
There are 5 steps that – if followed in the states – will bring Obamacare to its knees. The following is an overview of each, with model legislation linked at each step. Get the bills, contact your state legislators and senators, and urge them to introduce today!
1. REJECT THE EXCHANGES.
States were “given an option” – run the exchange, partner with the feds on running it, or leave it to DC to figure out. It doesn’t matter what “cards we were dealt” – as some governors are saying. Running an unconstitutional program for the feds is just plain wrong. And the first – and easiest – thing for states to do is to just say no.
Shifting the burden for health insurance exchanges to the feds effectively sabotages the implementation of Obamacare.
The federal government needs states to be complicit to pull this off. Otherwise, these decisions on who was creating exchange wouldn’t even have been included in the first place. The fact of the matter is that DC doesn’t have the resources or the manpower to run these exchanges in every state. Some analysts are saying that they only have the capacity to do so in 30-40 states, and any more than that will lead towards a collapse of the system.
So far, 36 states have rejected the creation of an exchange. But, most of these actions were done by an action of a Governor, and not legislatively. While this is a strong first step and will have significant effect in the long run, these Gubernatorial actions are highly susceptible to a quick change. An opinion, an election – can bring in a new attitude or a new governor willing to take the opposite.
Right now? Contact your state representative to introduce a bill banning it, even if your governor has already approved or denied the exchange. Make a state exchange illegal with a veto-proof majority and you’ve just made your DC-loving governor – or a future one- irrelevant. You can find model legislation here (.pdf)
2. REJECT THE MEDICAID EXPANSION.
During the Obamacare case before the Supreme Court, Rob Natelson and his colleagues at the Independence Institute argued that the law’s provisions forcing the states to expand Medicaid were unconstitutional. Neither the Constitution nor case law, they pointed out, permits the federal government to use federal spending programs to coerce the states. Seven of the nine justices agreed with them, essentially adopting the arguments advanced in their brief.
As a result, the states may consider freely whether or not to accept additional federal funds for the Medicaid expansion. Accepting federal funds might seem to bring the states short-term fiscal benefits. But the fiscal risks of doing so are very great—perhaps eventual bankruptcy. Financial and practical matters aside, helping the federal government run an unconstitutional program by participating in it on a state level is just plain wrong.
Get model legislation for your state HERE (.pdf)
3. BLOCK IRS’S ILLEGAL TAXES.
The 36 states that have refused to establish Exchanges can actually block the IRS’s illegal ObamaCare taxes legislatively by suspending the licenses of insurers that accept the illegal subsidies. Since no insurer would then accept one, not a single employer in the state could be hit with the employer-mandate penalties those subsidies trigger.
4. PROHIBIT THE STATE COMMISSIONER OF INSURANCE FROM INVESTIGATING OR ENFORCING ANY ALLEGED VIOLATION OF FEDERAL HEALTH INSURANCE REQUIREMENTS MANDATED BY OBAMACARE.
The provision prohibiting state insurance commissioners from investigating or enforcing violations of federally mandated health insurance requirements will prove particularly problematic for the feds. Insurance commissioners serve as the enforcement arm for insurance regulation in the states. The federal government has no enforcement arm. It assumed the state insurance commissioners would enforce all of the provisions of the ACA. So, when people have issues with their mandated coverage, they will have to call the feds. At this point, it remains unclear who they will even call should states ban their own Insurance Commissioners from carrying out this essential task. Issues the state insurance commissioner would not address include prohibiting a denial of insurance for preexisting conditions, requiring dependent coverage for children up to age 26, and proscribing lifetime or yearly dollar limits on coverage of essential health benefits.
“Disputes over these mandates arise under federal, not state law,” said Georgia State Rep. Jason Spencer, who sponsored a bill to take this step in 2013. “The federal Department of Health and Human Services can be expected to seek to commandeer the machinery of Georgia’s commissioner of insurance to enforce them or to investigate alleged violations because at present there is no federal health insurance agency and Congress is not likely to create one given the substantial opposition to Obamacare. Under HB707, the feds won’t be able to do that. They’ll have to figure out how to do it themselves.”
MODEL LEGISLATION HERE (.pdf)
5. COMPLETED THE FIRST FOUR? CONTACT US FOR STEP FIVE!
The first three steps are actually sub-steps of a larger first step forward. As James Madison made clear in Federalist #46, when a number of states work together to create a “refusal to cooperate with officers of the Union,” it will create “obstructions which the federal government would hardly be willing to encounter.”
In other words, the Federal government needs the cooperation and support from the states to carry out its act. In few places is this more obvious than with Obamacare. The first three steps will, at very least, cripple the implementation of the federal act should they be carried out in a significant number of states. Should that not be enough to pull the rug out from under the Act and bring it to its much-needed demise, there are further steps that can – and should – be taken on a state level to ensure that end result.
THE LEGAL BASIS
These provisions stand on solid legal ground under the “anti-commandeering doctrine.” This rests primarily on four SCOTUS cases: Prigg v. Pennsylvania (1842), New York v. US (1992), Printz v. US (1997) and National Federation of Businesses v. Sebelius. (2012) The Printz case serves the cornerstone. Writing for the majority, Justice Scalia asserted that commandeering is incompatible would the constitutional system.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. 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 policy making 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.”
“THE APPROACH IS ON SOUND LEGAL FOOTING”
-Mercer University law professor David Oedel, part of the legal team that represented Georgia in its challenge to the Affordable Care Act.
In short, if the federal government passes a law or regulatory scheme, the states don’t have to help them carry it out. The only question that remains: will you pressure your state to take the right course?
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