On Tuesday, South Carolina Sen. Tom Davis introduced an amendment to the “Obamacare nullification” bill passed last year by the House.

H.3101 was originally known as the Obamacare nullification bill because it declared the Patient Protection and Affordable Care Act unconstitutional and void within the state. After significant narrowing, the South Carolina House passed the bill 65-34. But the initiative floundered in the Senate and was carried over to the current legislative session.

Over the summer, Davis developed a new strategy for the bill. Instead of relying on a determination of constitutionality and declaring the ACA illegal, he worked with others to craft language based on the well-established anti-commandeering doctrine. The so-called “strike-all”  amendment would replace the full text of the bill. It would 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. While passage wouldn’t void the legal status of the federal act, it would be a significant blow to its implementation. Some call it a “nullification in practice.” Judge Andrew Napolitano has said that this action would “gut Obamacare.”

The anti-commandeering doctrine holds that the federal government cannot force states to help implement or enforce federal acts or programs. The doctrine rests primarily on four Supreme Court cases: Prigg v. Pennsylvania (1842), New York v. US (1992), Printz v. US (1997) and National Federation of Businesses v. Sebelius (2012) The Printz case serves as the cornerstone. Writing for the majority, Justice Scalia wrote that commandeering state resources is “fundamentally incompatible with our constitutional system of dual sovereignty.”

Davis introduced the amendment Tuesday, saying, “I’ve steered us towards constitutional safe waters.” During some back and forth dialogue, Sen. Chip Campsen asked, “You want to nullify and nstead, adopted a strategy that can lead to success?”

Davis eloquently clarified his strategy.

“There’s a strategy called ‘run to the daylight.’ This is it. While I support the idea of Jeffersonian nullification – I’ve read Tom Woods’ book -I recognize that current case law doesn’t support it, so I’ve crafted this amendment so we can get something done,” he said. “It’s a chance for us to take the words from the Supreme Court’s Printz decision and give them life in action.”

Davis took the floor again on Wednesday, providing more detail on the intent of the amendment. He pointed out that the ACA is “shredding the rule of law” and that the state should not help make that happen.

“Not a single state dollar should be used to hasten the implementation of the Affordable care act,” he said.

The amendment 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. Davis pointed out that nobody knows what kind of strings the federal government will tangle the state up with if it accepts this money. The new language would help protect the state.

“If any agency wants to apply to an ACA grant, there’s going to be a public hearing. There’s going to be an explanation of whether or not there’s any strings. And there’s going to be a public vote in this body,” he said. “More and more, the federal government pushes states around with strings associated with funding, and this amendment will shed some light on just what’s going on.”

Davis closed by emphasizing the importance of passing H.3010, not just for South Carolina, but to jump-start action across the U.S.

“If 50 states say, ‘We’re not merely political subdivisions of the federal government,’ we can finally start to do something about the steady erosion of state power and the concentration of power in Washington D.C.,” he said.

“If you want to do something more than just shake your fist- if you want to push back in a legal way – if you want to make a difference – then you should vote for this amendment.”

Sen. Lee Bright also took the floor to support the amendment. He insisted the issue should be viewed through a bipartisan lens.

“This isn’t about Democrat or Republican,” he said. “This is about being free.”

Then Bright too a swipe at those who put absolute faith in Supreme Court decisions.  “There are some here who, after the fugitive slave law was passed, would have just returned the ‘property’ because the Supreme Court said so.”

The debate is expected to continue next Tuesday with a vote coming in the near future.

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 H.3101 today.


In South Carolina: Take steps to support H3101 HERE.

Other States:  Contact your state legislators today – urge them to introduce similar legislation.  Model bills and contact info HERE.

Mike Maharrey

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