How do you eat an elephant?

One bite at a time.

Last year, Idaho legislators attempted to nullify the Patient Protection and Affordable Care Act. With Idaho Secretary of State Lawrence Wasden vocally opposing the principle of nullification, efforts failed.

HO117, which declared the health insurance mandates in the federal health care act unconstitutional and would have prohibited Idaho from enforcing them passed the House 49-20, but died in a Senate committee. HO059, a broader health care nullification act, never made it out of a House committee.

With similar political dynamics in play in the Gem State this legislative session, opponents of federal health care act opted for a new tactic.

Call it nullification by degree.

Instead of attacking the PPACA in toto, Idaho representatives opposing the act seek ways to block its implementation.  For instance, the House will likely reject a $20.3 million U.S. Department of Health and Human Services grant designated for the creation of a state insurance exchange, according to an AP report. And HO530 would prohibit any law requiring disability insurance providers to cover abortion, sterilization or contraception, provisions the feds will require.

The Idaho House has already blocked other bits of the health care act. For example, lawmakers voted down a proposal to expand Medicaid to cover smoking cessation for pregnant women. And on Monday, the House Business Committee rejected a HO423, a provision that would have set standards for excessive, inadequate or discriminatory rates for small employer and individual insurance plans by a 9-6 vote. The provisions would have aligned state law with the federal act.

“We’re going on the defensive,” Rep. Vito Barbieri, (R-Dalton Gardens) told AP reporter John Miller. “We’re finding ourselves having to put out fires as they come up.”

On a more proactive note, HCR45 encourages private insurance companies to set up exchanges in lieu of government run exchanges.

In an AP interview, Rep. Bob Nonini (R-Coeur d’Alene) likened private exchanges to a Travelocity site for health insurance.

“You can go onto a website, you can shop for airline tickets,” Nonini said. “I don’t know what’s stopping the insurance industry from going out and doing its own exchange.”

Another proposal titled the Idaho Free Market Insurance Act would allow Idaho residents to purchase health and accident insurance from out-of-state companies.

Lawmakers also hope to create a mechanism to monitor attempts to implement the health care act. The House overwhelmingly approved HO555, which would create a, “Federal Health Care Reform Oversight Committee to provide legislative oversight, policy direction and recommendations for legislation with respect to the compliance with and implementation of any federal health care initiative, law or regulation including, but not limited to, the Patient Protection and Affordable Care Act of 2009, as amended by the Health Care and Education Reconciliation Act of 2010, as it determines appropriate.”

The bill passed 55-12 along party lines. It will now move on to the Senate for consideration.

Tenth Amendment Center communications director Mike Maharrey called the approach by Idaho lawmaker shrewd and said other states without political support for outright nullification should consider similar tactics.

“Obviously, we would love to see states simply nullify the entire unconstitutional monstrosity that is Obamacare. But that’s simply not going to happen in Idaho, political realities being what they are,” he said. “So these lawmakers are doing what they can to protect the people they represent. We want the states to throw as many monkey wrenches in the process as possible. And if other states step up and take similar actions, maybe we can stop this federal overreach incrementally. Call it death by a thousand paper cuts.”

James Madison laid out a general blueprint for stopping unconstitutional overreach in Federalist 46. It sets the stage for nullification.

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.

“We advocate nullification. That’s what Jefferson called the ‘rightful remedy,’” Maharrey said. “But sometimes you have to know when to take half a loaf. Sometimes you just can’t get the whole loaf. If a state legislature can nullify the whole act, it should do it. But if it can only manage to pass a health care freedom act addressing insurance mandates, that’s better than nothing. And if a state can simply stop various facets of this thing from getting implemented like Idaho is doing, that’s important too. The bottom line is we want this unconstitutional act rendered null and void and each little cut helps.”

To track health care nullification legislation across the U.S., click HERE.

To track health care freedom acts, click HERE.

For model health care nullification legislation you can propose to your lawmakers, click HERE.

Mike Maharrey

The 10th Amendment

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