02.14.2011 0

State Lawmakers Should Resist Implementation of ObamaCare

ObamaCare Implementation Chart

By Kevin Mooney –

Although recent court decisions in Florida and Virginia have bolstered the constitutional case against ObamaCare, state officials should remain proactive in their pursuit of free market alternatives, according to policy analysts with expertise in health care policy.

In January, the American Legislative Exchange Council (ALEC) released its “State Legislators Guide to Repealing ObamaCare,” which details defensive measures that be used to slow and even stop implementation of the federal law. Thus far, lawmakers in 42 states have either introduced or announced their support for ALEC’s Freedom of Choice in Health Care Act, modeled on Arizona’s Proposition 101. The legislation, which shields individuals, employers and healthcare providers, from being coerced into making federally directed purchases, can be introduced either by statute or a constitutional amendment.

“ALEC’s Freedom of Choice in Health Care Act, if passed by statute, can provide a state-level defense against ObamaCare’s excessive federal power,” the ALEC Guide explains. “Particularly, the measure can provide standing to a state participating in current litigation against the federal individual mandate; allow a state to launch additional, 10th-Amendment-based litigation if the current lawsuits fail; and empower a state attorney general to litigate on behalf of individuals harmed by the mandate once it goes into effect in 2014.”

As part of its “pushback” strategy ALEC also advises states to reject the discretionary grants made available through ObamaCare. While they may seem attractive on the surface, these grants come with “strings attached” that would compel states to enforce federal policy, the report explains. In 2010, former Minnesota Gov. Tim Pawlenty signed an executive order prohibiting state agencies from applying for ObamaCare grants. Alaska, Iowa and Georgia have also resisted federal overtures.

Michael Tanner, a senior fellow with the CATO Institute, ardently endorses ALEC’s strategy and encourages state officials to avoid making any expenditures on behalf of the federal law. He also said state regulators should not do the bidding of ObamaCare.

“The idea here is to make feds do the enforcement,” he said. “Do not let your own regulators get involved. Basically, this is about non-compliance and passive resistance.”

Tanner also said that opposition to ObamaCare has helped to reawaken and revitalize federalism.

“The whole federal overreach in this has stimulated a discussion of federalism in a way that we have not seen since the Reagan era. With the federal government reaching into areas that we always assumed were left to the states, this has now has people thinking and asking themselves what other areas is the federal government reaching into that should be left to the states. This has been a very healthy discussion.”

States officials have a clear choice. They can either expend limited resources to enforce the new law, or they can pull back and force the feds into doing their own enforcement.

Insurance commissions in Louisiana and elsewhere may not have clear statutory authority to enforce certain federal mandates, ALEC policy specialists have noted. This would include new consumer protections described in President Obama’s health care law such as the ban on pre-existing conditions for child-only coverage and the requirement that some individuals be permitted to stay their parent’s insurance until the age of 26.

“States should let the federal government spend the time, money, and political capital required for implementation,” Christie Herrera, ALEC’s Health and Human Services Task Force director, has observed.

“I don’t think that states will be able to escape federal rules if they decide to get involved.  Barring congressional repeal or a Supreme Court decision, this law will go forward as enacted — so state legislators would be wise to step back and let the federal government entirely own the consequences.”

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