James Madison outlined the blueprint states can use to resist unconstitutional federal overreach in Federalist 46.
Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.
It appears state resistance to the Patient Protection and Affordable Care Act could create just the kind of impediments Madison envisioned.
The New York Times reports state lawmakers in New York have managed to block the state from seeking federal grants needed to set up health insurance exchanges. Gov. Andrew Cuomo proposed forming the necessary exchange, and the Democratic Party controlled State Assembly approved the plan, but the Republican controlled Senate refused to take up the measure before adjourning the regular session in June and lawmakers appear in no hurry to return the Albany.
“I would fight very vociferously to make sure that we’re not seen as implementing and expediting Obamacare,” Rep. Gregory Ball (R-Putnam County) told the New York Times.
The next application deadline is Sept. 30 and New York will almost certainly miss it.
New York doesn’t stand alone in its health care act implementation foot-dragging. Since passage of PPACA, only 13 states have approved legislation to set up the exchanges, according to the National Conference of State Legislatures. Kansas Gov. Sam Brownback recently bowed to public pressure and returned a $31.5 million federal grant meant to purchase technology to aid in setting up exchanges, and Oklahoma returned $55 million last spring.
Rutgers political science professor Ross Baker told the Times that the foot-dragging was a bad omen for the Obama administration.
“This has got to set of some very loud alarm bells in the White House,” he said. “With a state as visible as New York, for the exchange to be obstructed is a very ominous sign for the ultimate implementation of the Affordable Care Act.”
The delays also have some supporters of PPACA nervous.
“What may end up happening here is, if you kick the can, you may end up kicking it off the cliff,” Blair Horner, a vice president of the American Cancer Society of New York and New Jersey, told the Times.
“Good!” Tenth Amendment Center communications director Mike Maharrey said. “All of the states need to stand up and refuse to implement this unconstitutional monstrosity. If the states simply refuse to set up the system, the health care act will wither on the vine and die the death it deserves. If a majority of states refuse to play, what are the feds really going to do about it? Roll tanks into the streets and make them?”
Maharrey called state nullification the only real shot of stopping nationalized health care.
“Last week the 4thCircuit Court of Appeals threw out Virginia’s court challenge to the health care act. It just goes to show we can’t count on the federal courts to stop this thing,” Maharrey said. “It’s up to the state legislatures to stand up for their citizens, do their duty and interpose to keep it from being set up. The states have the power. They just need to use it.”