The Next Obamacare Challenge: State Sovereignty And The Constitutionality Of State Insurance Exchanges

I personally have never believed that Obamacare was designed to succeed – quite the opposite, I believe it was designed to make one hell of a mess of our health care industry and then fail. The objective is to suck every citizen in to the program, destroy the private providers and then roll out the “too big to fail” mantra and boom, there you go – single payer. 100% government run and owned health care.

But even though John Boehner says it is settled law:

“Obamacare is the law of the land.”

…there are still many questions in the 2700 pages other than the individual mandate that SCOTUS decided was a tax.

The next challenge is the state level exchanges. Hugh Hewitt writes:

Professor Barnett is one of the country’s most accomplished scholars on federalism, but he is not yet persuaded that the impact of the federal exchange on state sovereignty is sufficient to question the constitutionality of the scheme.  What is needed is evidence of the impact on state sovereignty.

He appreciates my metaphor: Imagine the consequences of piloting a supertanker into a small-to-medium sized harbor used for commercial fisherman and pleasure craft.  The tanker would swamp the ordinary operations of the harbor, disrupt the settled laws and custons of the place, and almsot certainly have the de facto effect of obliging everyone to work around (and in some respects for) the supertanker company no matter whop was actually paying their wages.

And has more in his TownHall column:

With the president mobilizing for a barnstorming tour in support of massive tax hikes and to, in effect, overturn last week’s vote to keep the House in GOP hands and the gavel in John Boehner’s –details here on the president’s plan– the GOP is getting organized in the House and laying down markers.

The media is focused on speculation about the “big deal” and the various scandals, but a huge story is brewing that few are watching.

The deadline for the most important political and legal decisions of the near term is being made in every state: Whether or not to establish a state health insurance exchange pursuant to Obamacare. The original deadline for each governor to decide was this Friday, but HHS has graciously given the states another month to decide which poison to pick: Subservience via establishment of a puppet exchange or takeover of the state’s insurance business via a big foot federal health exchange. The rules the feds have dictated the states must follow in making their choice are here.

Yesterday, Governor Robert Bentley of Alabama announced that Alabama would not be establishing the exchange or expanding Medicaid. The latter is not surprising, as the expansion will quickly eat away at state budgets.

But Bentley’s position on the exchange –he joins at least Alaska, Florida and Texas in just saying no– is very welcome and hopefully a model for other Republican governors who must by law indicate their decisions on the exchange set-up by mid-December. Other states ought also to study the example set by Oklahoma, and sue to overturn the Hobbesian choice on exchanges being forced on them.

Only one state lawsuit against the forced choice on health exchanges has been filed –by the Sooners’ AG, and the amended complaint is here– and the national opposition to Obamacare should be looking for other governors to say no and other attorneys general to file similar challenges to the health exchange jam down.

The left is attempting to declare the Obamacare fight over. It isn’t. It is a 15 round fight. Conservatives won rounds when they elected Chris Christie, Bob McDonnell and then Scott Brown after the debate was begun. The left won a round when the law passed was passed, and it won a round when the Supreme Court upheld the individual mandate, but conservatives won in that opinion as well, on Medicaid and on the reach of the Commerce Clause.

The left scored a knock-down with the president’s re-election, but the fight isn’t over if the conservatives opposed to the law get up off the canvas and fight on. Oklahoma has, and some states have joined them, though not yet in the courts. They should, and soon. Obamacare was nightmare before the election, and it is a nightmare still. The president’s re-election was manifestly not about Obamacare, and the decision is not final and won’t be until every good argument is made and every opportunity given the Supreme Court to review the law in full.

Even if the legal fight should fail, it is important for federalism that many states pass on becoming puppets of the feds via the state exchanges. The fiasco-in-waiting of the federal exchange should be on the president’s head, with blame not easily shifted to bungling governors. The president broke it, so he should buy and operate it.

But only after every argument has been made, and the Supreme Court offered the opportunity to rule on the law as a whole.

Round two.

7 thoughts on “The Next Obamacare Challenge: State Sovereignty And The Constitutionality Of State Insurance Exchanges

  1. The simple fact that American in general cannot close the topic of Obamacare demonstrates exactly how much of a disaster this piece of legislation is.

    I commend Gov. Robert Bentley, MD for his position.

  2. Obamacare was NEVER designed to succeed. EXACTLY.

    Designed to assume dictatorial power, bankrupt everyone & then fail.

    There will be just as many prople uninsured as before. There will be at least 16,000 new federal agents making sure you will comply ! Coincidentally, for the FIRST time in history, the IRS ordered MILLIONS of rounds of ammunition. Why ?

    Where are the hundreds of new hospitals and thousands of new doctors, nurses, & untold medical providers?

    Who were the advisors & contributors to the bill that spent their lifetimes working in the healthcare services field? None !

    Anyone with ANY common sense can see Obamacare was never about providing healthcare to everyone.

    Any objective look Can only

  3. Obamacare depends on state co-operation. Four states, Alabama, Missouri, Montana, and Wyoming passed Constitutional amendments to protect the rights of citizens to make their own health care decisions. IMO a four year war of attrition could make the mandate go away. Am I underestimating the President?

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