Soon after the new Congress convened last month, one of the first actions by the House of Representatives was a vote to repeal the Patient Protection and Affordable Care Act, otherwise known as Obamacare. The repeal action passed with a significant majority in the House and came to a vote in the Senate.
Now the judiciary appears to have joined the elected branches of government in rediscovering a duty to obey the U.S. Constitution. While unsuccessful in the Senate, the states’ lawsuits against Obamacare are gathering steam in the courts. Every governor opposed to Obamacare should take advantage of this momentum.
In December, Judge Henry Hudson agreed with Virginia’s claim that the so-called “individual mandate,” which charges residents a penalty for not buying government-dictated private health insurance, is unconstitutional. However, the judge asserted an “implied severability,” which means that the rest of the law still stands.
Subsequently, Florida led 25 other states to an even more significant judicial victory against Obamacare. On Jan. 31, Judge Roger Vinson agreed that the individual mandate was unconstitutional, but concluded that the entire law is therefore invalid. Oklahoma recently decided to launch its own lawsuit against Obamacare, and these two decisions should certainly encourage other states to do likewise.
But states cannot leave the fight against Obamacare to the courts alone. The legislative and executive branches have critical roles to play. Legislatures can, for example, pass a version of the Health Care Freedom of Choice Act, for which model legislation has been drafted by the nonprofit American Legislative Exchange Council.
Some governors, of course, misunderstand Obamacare as an opportunity, instead of rightly viewing it as a threat. In California, for example, Gov. Jerry Brown’s newly appointed Secretary of Health and Human Services has pledged to drive the “lead car” in the race to sacrifice citizens’ health choices to federal control.
Unfortunately, California’s “lead car” will spin out of control and crash whether or not Obamacare is finally declared unconstitutional. Former Gov. Arnold Schwarzenegger foolishly signed a law last year that launched an Obamacare-compliant Health Benefits Exchange, but neglected to include a “self-destruct” clause in case Obamacare ceases to exist. More mysterious is the response of some governors who oppose Obamacare.
They should be leveraging Judge Vinson’s decision with all the power at their command. Georgia, for example, is one of the 25 states that joined Florida’s successful lawsuit. It’s also a state where Republicans hold the governorship and majorities in both legislative chambers. Gov. Nathan Deal claims to oppose Obamacare, yet his response to Judge Vinson’s ruling was curiously weak: “We’ll be required to move forward until such time relief is granted or an appellate decision is finalized.”
Required by whom? Does Deal think that Kathleen Sebelius, U.S. Secretary of Health and Human Services, has some kind of power to fine or imprison him if he refuses to obey her? On the contrary, Secretary Sebelius’ ability to inflict Obamacare on the country will be severely hampered if states obey the Constitution and decline to collaborate with her bureaucrats. That is especially true with a majority committed to Obamacare’s repeal now controlling the U.S. House of Representatives.
The correct response to the momentum created by Judge Vinson’s ruling is exemplified by Florida governor Rick Scott, who takes his state’s commitment to defeating Obamacare as seriously as his attorney general, Pam Bondi, does. Not only has he decided not to waste “time and money” implementing Obamacare, but his insurance commissioner has actually returned Secretary Sebelius’ $1 million grant to start the spadework on a Health Benefits Exchange.
John R. Graham is director of Health Care Studies at the San Francisco-based Pacific Research Institute (www.pacificresearch.org)