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).