Free Times: Would-be Obamacare Nullifiers Try Fresh Tack

free timesThe legislative effort to block Obamacare in South Carolina shifted course last week, with Sen. Tom Davis (R-Beaufort) striking nullification language from H. 3101 to replace it with a lesser-known legal doctrine that also seeks to assert states’ rights — anti-commandeering.

The amendment signals abandonment, for now anyway, of outright nullification — the legal theory that says states have the right to do away with, or nullify, any federal law they deem unconstitutional. Despite its enduring popularity among South Carolina conservatives — slave owners in the 19th century, segregationists in the 20th — federal courts repeatedly have shot it down, rendering nullification a historical curiosity to most Americans.

But while Davis appears to oppose Obamacare just as fiercely as H. 3101’s original author, Rep. Bill Chumley (R-Spartanburg), he demonstrated some 21st-century savvy back in January when he told The State: “We can’t nullify.” He’s since described his amendment as “an acknowledgement that although I may not like it, and I don’t like it, Congress passed the Affordable Care Act, and the president signed it into law, and the United States Supreme Court declared it constitutional.”

In explaining the principle of anti-commandeering, Davis cites Printz v. United States, in which the U.S. Supreme Court ruled in 1997 that while Congress has the authority to legislate over the states, it cannot compel the states to devote their resources to implement federal laws.

The Supreme Court returned to Printz in 2012 in Independent Business v. Sebelius, citing it in when it ruled a portion of the Affordable Care Act that would have compelled states to expand their Medicaid rolls to be unconstitutional.

“The first thing my amendment does is say, OK, the Affordable Care Act is the law of the land. We’re not going to nullify it, but neither, however, can the state be compelled to spend its money or direct its agencies to assist in its implementation,” Davis says.

But he was challenged on the floor of the Senate last week by freshman Sen. Marlon Kimpson (D-Charleston), an attorney, who argued that the facts of Printz are not analogous to the effort to obstruct Obamacare in South Carolina.

“When lawyers argue cases, they try to make the facts analogous to the current situation,” Kimpson says. “Printz was based on the fact that Congress passed a law, and that law required local law enforcement officials … of various states to do several things. The federal legislative power was creating a law commandeering, or instructing, local officials to handle certain responsibilities.”

With the ACA, he says, Congress prescribed a law, but it placed the burden on the individual, not the state, to carry it out, in this case by purchasing insurance.

“It’s another attempt to nullify,” Kimpson says of Davis’ bill. “They changed the word to anti-commandeering. I submit that our taxpayer dollars are being commandeered to other states. We’re sending our money to other states” to pay for their Medicaid expansions.

It appears Davis’ fellow travelers at The Tenth Amendment Center, a California think tank that advocates for state sovereignty, would agree with Kimpson’s point about nullification. Regardless of Davis’ insistence that his amendment would not nullify Obamacare, because it does not seek to declare it unconstitutional, the Center finds his distinction negligible.

“The Davis amendment stops state cooperation. It stops the federal dollars. That stops Obamacare,” a Jan. 23 post on its blog reads.

In addition to supplanting nullification with anti-commandeering, Davis’ amendment puts forth these additional provisions: All grants and programs associated with the ACA would be vetted and approved by legislators; Gov. Nikki Haley’s rejection of the Medicaid expansion would be codified into permanent law, as would her decision not to establish a state-run health insurance exchange; ACA navigators charged with helping citizens find a suitable policy would be required to register with the Department of Insurance and adhere to anti-fraud regulations.

But as opposed to Obamacare as most South Carolinians are, not everyone wants to see it upended. Powerful business interests such as the South Carolina Manufacturers Alliance, the South Carolina Chamber of Commerce, the South Carolina Hospital Association and insurance companies oppose the bill, fearing it could inject regulatory uncertainty into the health care market that could damage the economy. There is also concern that South Carolina could develop a reputation as an outlier state operating outside the regulatory norm of America.

Meanwhile, Democrats argue that Davis’ bill is unconstitutional and would only serve to fritter away taxpayer dollars in “defending the indefensible” in court.

“We will lose — just like we lost on immigration, just like we lost on voter ID, just like we’ve lost every major challenge that’s come to state law that we’ve had,” says Sen. Brad Hutto (D-Orangeburg). “I know Sen. Davis. I know he’s sincere, but he’s trying to put a square peg in a round hole.”

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