States across America have been waiting patiently for Washington to remember that there are Tenth Amendment curbs on federal power. The administration has willfully violated states’ turf and Congress has shown no will to counter these violations of federalism.
When it comes to Obamacare, given the administration’s litany of insults to the legislative process and underlying disrespect for the separation of powers, it’s hard to know whether Congress really is working to repeal, replace, or reform the ACA. After 47 attempts to do something about the law, Congress hasn’t even been able to stop executive revisions that both pander to political friends and delay bad news until after the next election. As state attorneys general file multiple lawsuits and friend-of-the-court briefs, courts either happily or grudgingly apply Commerce Clause or Spending Clause precedent and continue to subject state authority to federal controls.
So what can we do?
There’s a promising way to challenge the ACA from the state level: a contract now circulating among the states to declare their supremacy in health-care management. This health-care contract — constitutionally known as an interstate compact — is a viable option, and it’s gaining momentum.
This “Healthcare Compact” to “restore authority and responsibility for health care regulation to the member states” sends health-care funds as already apportioned to respective states for them to carry out local administration. Through the Compact, Congress may give states an exit ramp without re-litigating various elements of the ACA.
Eight states are already on board with the idea, and ten more are engaged in the deliberation process. Representative James Lankford of Oklahoma recently introduced a House bill to gain congressional consent for the Compact and is gathering co-sponsors.
What are interstate compacts? They actually pre-date the American Constitution and are used today to negotiate challenges confronting particular states from boundary agreements and energy policy to education concerns, crime control, and disposal of hazardous waste.
The constitutional strength of the compacts, outlined in Article I, Section 10, has been recognized in multiple judicial opinions and tested against federal pre-emption and supremacy concerns. The Healthcare Compact is a somewhat different breed of state contract since it is, in part, a vehicle to redress a constitutional violation of state health, safety, and welfare authority and a mechanism to allow states to opt out of Obamacare (in cooperation with an independent advice-only commission).
The prevailing understanding of the Supreme Court’s ruling on Obamacare is that it was upheld, is law of the land, and is therefore not open to challenge. But the Supreme Court simply said that Congress has the power to tax for the purpose of “expand[ing] health insurance coverage.”
At the same time that the Court allowed the taxing mechanism, it also reminded the American people that politics produced the ACA and that political process is the solution to dissatisfaction with it. “It is not our role to forbid [the tax], or to pass upon its wisdom or fairness,” the Court wrote, since these judgments are “reserved to the people.”
What do the people think? Consider a new poll showing that they support state supervision of medical and health affairs by a 2-to-1 margin. It’s up to remaining state houses to join the Compact and to members of Congress to co-sponsor the consent bill, House Joint Resolution 110, and reflect the wishes of the people.
The compact emphasizes that states will undergo a deliberative review of the entire array of health-care options. From the cost-conscious Christian cooperative funds for members’ serious medical bills to the popular government-employee Health Savings Accounts offered in Indiana, states have ideas to address quality and coverage concerns. They should get the opportunity to try them.
Consent to the Healthcare Compact is the very least that Congress can do, after passing the largely un-read ACA by an illegitimate use of reconciliation, bestowing unfair bribes on reluctant districts and states, granting myriad waivers to politically important groups, allowing a series of substantial executive revisions, and betraying employers and the insured who really wanted to “keep their plans.”
The unchecked expansion of executive power exhibited in the unilateral executive rewrites of the ACA has been extraordinary. Left-leaning constitutional-law scholar Jonathan Turley has declared that Obama’s power grab is creating a “constitutional tipping point,” and he lamented the acquiescence to these “fundamental” changes to our rule of law-based system “without a whimper of regret or opposition.”
Such circumstances demand an assertive answer. An interstate compact is the most emphatic statement that the people can make on Obamacare. The Compact petitions Congress to recognize the high duty of states to oversee health and safety matters — not an obligation created by the states, but part of the constitutional order. As state legislatures unite, Congress must respond. If Congress ignores or denies the contracting states, the matter will become an election issue.
But for now, if the states unite under this contract and reinforce their sovereignty, they will have done their part to correct the damage done to our health-care system, our economy, and the rule of law in the name of Obamacare.
— Karen Lugo is director of the Texas Public Policy Center’s Center for Tenth Amendment Action.