Mississippi Bill Would Ban Obamacare Enforcement; Foundation to Nullify in Practice

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A bill introduced in the Mississippi Senate would prohibit implementation and administration of Obamacare by the state. Passage of this bill would set the stage to bring down the federal health care act in Mississippi.

Sen. Michael Watson (R- Pascagoula) introduced Senate Bill 2168 (SB2168) on Jan. 14. The legislation would prohibit Mississippi state agencies, political subdivisions, and corporations doing business with the state from enforcing any federal rules, acts, orders or regulations designed to give effect to the Affordable Care Act, and from providing material support to federal employees doing the same. It would also bar the use of any state assets or funds for the enforcement of such rules and regulations.

In addition, SB2168 would also prohibit state expansion of Medicaid, an important part of the Obamacare plan.

Agencies or political subdivisions of the state in violation of the law would be barred from state grant funds. Employees of the state or its political subdivisions who knowingly violate the law would be permanently barred from working in a state or local government job. Corporations violating the law would be forever ineligible to act on behalf of, or provide services to, the state or any political subdivision of the state.

PRACTICAL EFFECT

The Republicans failed to repeal the Affordable Care Act when they had control of both houses of Congress. Although provisions in tax reform bill cut the individual mandate penalty to zero, all of the other rules, regulations and taxes connected with Obamacare remain in place. With Democrats now running the House, it seems unlikely Congress will ever repeal the ACA.

Some people hang their hat on a recent district court ruling holding Obamacare unconstitutional. But the case must still move through the appeal process and ultimately to the Supreme Court for it to have any practical impact on the operation of the Affordable Care Act. We saw the what happens when we depend on federal courts to defend the Constitution when the SCOTUS initially found Obamacare constitutional in 2012.

Regardless of what the courts of Congress do, state actions can help completely bring down the Affordable Care Act.

Obamacare was predicated on state cooperation. By ending state actions that support the ACA and refusing to enforce any of its mandates, a state can make it nearly impossible to run Obamacare within its borders. The federal government never intended to run the healthcare system alone, and ultimately, it can’t do it without state help. We’ve already seen the difficulties created for the Act by the number of states that simply refused to set up exchanges for the federal government.

“The federal government can barely manage running a website,” Tenth Amendment Center Executive Director Michael Boldin said.

Judge Andrew Napolitano noted that if a number of states were to refuse to participate with the ACA in a wholesale fashion, that multi-state action would “gut Obamacare.”

it will gut ObamaCare because the federal government does not have the resources or the wherewithal […] to go into each of the individual states.”

The legislation would ban the Mississippi Department of Insurance from investigating or enforcing violations of federally mandated health insurance requirements and said this will “prove particularly problematic for the federal government.”

Insurance commissioners serve as the enforcement arm for insurance regulation in the states. The federal government has no enforcement arm. The feds 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 the state be prohibited from carrying out this essential task. Issues the state insurance department would not address include prohibiting 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.

LEGAL BASIS

SB2168 rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.

“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 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.”

WHAT’S NEXT

SB2168 was referred to the Senate Medicaid Committee where it must pass by a majority vote before moving forward in the legislative process.

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