ATLANTA, Mar. 4, 2014 – Yesterday, the Georgia state House of Representatives passed a bill which bans the state from participating in significant portions of the Affordable Care Act (ACA). House Bill 707 (HB707), introduced by Rep. Jason Spencer, pushes back against the ACA in five ways. It passed the house in a late-night vote of 115-59.
According to Tenth Amendment Center executive director Michael Boldin, “While Georgia can’t fully stop Obamacare on its own, it can serve as a pretty major roadblock to implementation,” he said. “And as more states get on board with this strategy, it will pull the rug out from under it. Bills like this will end Obamacare from the bottom up.”
1. Prohibits any state agencies, departments or political subdivisions from using resources or spending funds to advocate for the expansion of Medicaid. This provision works hand-in-hand with HB990 to make it more difficult to expand Medicaid. HB990 would require legislative approval for expansion of the program, barring the governor from doing it by executive order.
2. Prohibits the state of Georgia from running an insurance exchange.
3. Refuses and federal grant money for the purpose of creating or running a state insurance exchange.
4. Ends the University of Georgia Health Navigator Program.
5. Prohibits the Commissioner of Insurance from investigating or enforcing any alleged violation of federal health insurance requirements mandated by Obamacare.
These provisions creates impediments to the implementation and execution of Obamacare in Georgia. We have seen the difficulties created by the number of states simply refusing to set up exchanges. The ACA was predicated on state cooperation. By refusing to help, passage of the bill puts the federal government in an almost impossible position. It never intended to run the healthcare system alone, and ultimately, it can’t do it without state help.
Judge Andrew Napolitano agreed recently, when pointing out that if a number of states were to refuse to participate with the ACA in a wholesale fashion, that multi-state action would “gut Obamacare.”
The provision prohibiting the Georgia insurance commissioner from investigating or enforcing violations of federally mandated health insurance requirements will prove particularly problematic for the feds.
Insurance commissioners serve as the enforcement arm for insurance regulation in the states. The federal government has no enforcement arm. It assumed the state insurance commissioners would enforce all of the provisions of the ACA. So, when people have issues with their mandated coverage, they will have to call the feds.
At this point, it remains unclear who they will even call. Issues the Georgia insurance commissioner will not address include prohibiting a denial of insurance for preexisting conditions, requiring dependent coverage for children up to age 26, and proscribing lifetime or yearly dollar limits on coverage of essential health benefits.
“Disputes over these mandates arise under federal, not state law,” HB707 sponsor Rep. Jason Spencer said. “The federal Department of Health and Human Services can be expected to seek to commandeer the machinery of Georgia’s commissioner of insurance to enforce them or to investigate alleged violations because at present there is no federal health insurance agency and Congress is not likely to create one given the substantial opposition to Obamacare.
Under HB707, the feds won’t be able to do that. They’ll have to figure out how to do it themselves.
This provision stands on solid legal ground under the anti-commandeering doctrine. It rests primarily on four SCOTUS 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 the cornerstone. Writing for the majority, Justice Scalia asserted that commandeering is incompatible would the constitutional system.
“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 policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
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