Last year, the South Carolina Freedom of Health Care Protection Act was introduced, H.3101. It was known as the “Obamacare Nullification” bill because it initially declared the Affordable Care Act (ACA) to be illegal within the state.
Through the house process, the bill was significantly narrowed and eventually passed by a large margin. The vote was 65-34.
This year, Sen. Tom Davis (R-Beaufort) has prepared and is introducing a “strike and replace” amendment to insert new, stronger text into the bill. It has garnered significant support in the state senate and a vote is expected the week of Mar. 3.
The new amendment will ban the state from participating in the implementation of the main pillars of the federal act, including both the individual and employer mandates, along with the exchange and medicaid expansion. As Judge Andrew Napolitano has said, doing this in a number of states will “gut Obamacare,” making it virtually impossible to be implemented and creating a practical nullification of the ACA.
The legislation prohibits the state from implementing or participating in the “establishment of a health insurance exchange” under the federal act. It bans the state from even taking actions to “assist in the enrollment of any person” in an exchange. It also bans the state from expanding Medicaid under the ACA.
The Davis amendment also specifically targets both Section 1501 and 1513 of the ACA, commonly known as the individual mandate and the employer mandate, respectively. It prohibits the state from enforcing or even aiding in the enforcement of either section. This includes an express prohibition on the use of any “assets, state funds or funds authorized or allocated by the state to any public body… to engage in any activity that aids in the enforcement of any federal act, law, order, rule, or regulation intended to give effect to or facilitate the enforcement” of those two sections of the ACA.
The legislation also creates a new “transparency in grants” procedure to make the receipt and use of grant money under the ACA extremely difficult, if not politically impossible. Jesse Graston of the JBS agreed.
“The General Assembly and the Governor’s office will have to jump through over 11 different hoops describing exactly where every single penny of the grant money is going and what it’s impact in several different ways will be to our State,” he said. “It will require a roll call vote from both the House and Senate to approve receiving the grants. That is huge, as they love to pretend to be conservative then back door the money somehow. They cannot do this now.”
Resting on the long-standing legal principle known as the “anti-commandeering doctrine,” the new amendment is titled the ACA Anti-Commandeering Act.
In four major cases from 1842 to 2012, the Supreme Court has consistently held that the federal government cannot “commandeer” states, requiring them to enforce or expend resources to effectuate or participate in federal law or regulatory programs.
Printz v. United States (1997) serves as the lynchpin for the anti-commandeering doctrine. At issue was a provision in the Brady Gun Bill that required county law enforcement officers to administer part of the background check program. Sheriffs Jay Printz and Richard Mack sued, arguing these provisions unconstitutionally forced them to administer a federal program. Justice Antonin Scalia agreed, writing in the majority opinion “it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme.”
Citing the New York case, the court majority declared this provision of the Brady Gun Bill unconstitutional, expanding the reach of the anti-commandeering doctrine.
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-bycase weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.
In Independent Business v. Sebelius (2012), the Court held that the federal government can not compel states to expand Medicaid by threatening to withhold funding for Medicaid programs already in place. Justice Robert Kennedy argued that allowing Congress to essentially punish states that refused to go along violates constitutional separation of powers.
The legitimacy of Congress’s exercise of the spending power “thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ” Pennhurst, supra, at 17. Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system. That system “rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the creation of two governments, not one.’ ” Bond, 564 U. S., at ___ (slip op., at 8) (quoting Alden v. Maine, 527 U. S. 706, 758 (1999) ). For this reason, “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York, supra, at 162. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer.
With a vote coming soon, supporters of health freedom in South Carolina are strongly urged to contact their state senators to urge a YES vote on H3101 today.
You can find your legislator’s contact information by clicking HERE.
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