Maine Governor Paul LePage issued a letter yesterday to Kathleen Sebelius, Secretary of the Department of Health and Human Services, declaring that Maine will not implement the healthcare exchanges created by the Patient Protection and Affordable Care Act.
In the letter, Governor LePage stated:
Because the guidance issued in the August 13, 2012 request of the U.S. Department of Health and Human Services (HHS) is not legally binding, the State of Maine will not be submitting a Declaration Letter. Instead, this letter serves as the state’s position regarding this issue.
Since the ACA was signed into law, the State of Maine, along with several other states, has repeated on a number of occasions and we continue to believe that the law has severe legal problems, is bad policy, and overreaches into the lives and pocketbooks of fellow Americans.
This is not the first time that the Maine Governor has taken a stand against the federal legislation, better known as “Obamacare.” Back in July, he ignited a storm of controversy when he referred to the IRS as the “new Gestapo.” In addition to the remark, he also noted that the measure would “raises taxes, cuts Medicare for the elderly, gets between patients and their doctors, costs trillions of taxpayer dollars and kills jobs.”
Governor LePage’s claims about the federal legislation creating a financial burden are not wrong. The healthcare exchanges, if the states are to decide to implement them themselves, will be responsible for the cost of enactment. This was half of the outrage with the REAL ID Act, a Bush-era law that stopped just short of creating a national identification card, but was an obvious precursor. In addition to the privacy concerns, the states would have to foot the bill of implementation. In 2006, Maine became the first state in a movement that would later include over half of the Union, to refuse implementation. This resistance to federal law was by a Democratic Legislature.
In the letter, the governor continues to note that the complex nature of the bill complicates implementation:
Furthermore, many of the ACA regulations remain incomplete two and a half years after the bill passed. The legal status of portions of the bill remains unresolved, and there are too many unanswered questions. Complex technicalities make interpretation challenging, and unknown financial obligations—at a time when we face a fiscal crisis that we have yet to resolve—become extremely burdensome to businesses and families. Without such issues addressed, Maine cannot make a prudent and comprehensive decision in the best interest of our citizens.
Correctly highlighted is the problem with federal mandates. There is an excess of compliance expectations while uncertainties about the future linger. States are told they must comply because federal law is always supreme, thus making questioning by governors and legislators seemingly pointless. This is not the case however.
Article 6, Clause 2 of the United States Constitution reads, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” Note the point about laws made in pursuance of the Constitution. Unless the law is compliant with the Constitution, it is null and void. States have an obligation here to stand up.
Under the Constitution, the powers of the United States are specifically delegated in Article 1, Section 8. Beyond this point, everything is left to the states, unless specifically prohibited to them, pursuant to the Tenth Amendment. When the clear boundaries are overstepped, the solution was clear to two influential founding fathers. Thomas Jefferson, the principal author of the Declaration of Independence, stated in the Kentucky Resolution of 1798 that when powers not delegated are taken on by the federal government “a nullification of the act is the rightful remedy.” James Madison, the principal author of the Constitution, stated in the Virginia Resolution of 1798, that it is the duty of the state to “to interpose for arresting the progress of the evil”, when the boundaries are overstepped.
Governor LePage goes on in his letter to make the correct observation that the states are deprived of their constitutional power over intrastate affairs, by explaining:
This law robs states of the ability to innovate and find cost-effective solutions that meet the needs of their citizens. We want meaningful reform, but the ACA masquerades as a free-market idea when in reality it is a stepping-stone to a single-payer system. Maine will not be complicit in the degradation of our nation’s premier health care system.
Governor LePage has become faced with an overstep by the federal government, an entity in clear violation of Article 1, Section 8 of the United States Constitution. The Supreme Court refused to stand on the law, and tried to alter it. Contrary to popular belief, they are not the end decision. As Jefferson himself once noted in 1820, the concept that the Supreme Court is the final arbiter and the people are helpless to the unelected lawyers with lifetime terms reduces America to an oligarchy. Thus, as Madison and Jefferson suggested in 1798, which Maine also did in 2006 in response to REAL ID, the response should be to refuse implementation. Governor LePage is doing the right thing in refusing implementation. If we are to enact solutions, they should be compliant with the law and made at the state level.
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