How Georgia is fighting Obamacare and federal overreach

HB 707 -- Georgia Health Care Freedom and ACA Noncompliance Act

Scot Turner is a member of the Georgia House of Representatives, representing the 21st District. He was first elected in February 2013 in a special election, taking 60% of the vote over an establishment-backed candidate. Rep. Turner is part of a group of legislators who introduced the Georgia Health Care Freedom and ACA Noncompliance Act, a measure that cleared the legislature in the final days of its recent session. In this guest post, Rep. Turner tells the story behind the legislation, the difficulties they faced, and how Georgia is fighting Obamacare at the state level.

In the summer of 2013, I was part of a team of state representatives that worked together to tackle the problem that the Affordable Care Act (ACA) was presenting to Georgia. The federal government had just coopted a prominent Georgia institution, the University of Georgia, to help implement the ACA Navigator program without any debate in the Georgia General Assembly.

As a result, we all felt a certain urgency that something had to be done to draw the line in the sand and stand against the largest federal overreach in modern history.

There was some debate within our group as to whether we should approach it from a stance of full on nullification; the theory that a state has the ability to void federal law. Knowing that even of it did pass the Georgia legislature the likelihood that it would withstand judicial scrutiny was virtual non-existent, we pressed on.

It was important that what we were undertaking would be permanent and not easily undone by the judicial branch. What we came up with was a policy of non-compliance empowered by the anti-commandeering doctrine.

There are four court cases that serve as the foundation for the anti-commandeering doctrine: Prigg v. Pennsylvania (1842), New York v. United States (1992), Printz v. United States (1997), and NFIB v. Seibelius (2012). Each case dealt with a different subject matter, but empowered the states to deal with federal law by refusing to use state resources to assist with or enforce federal law.

Prigg, for example, established that Pennsylvania could, through statute, prevent any of their own agencies from assisting with returning runaway slaves under the Fugitive Slave Act. In New York, the Supreme Court ruled that the states could not be forced to take title of radioactive waste in order to be in compliance with federal law.

Printz saw the Court rule that the federal government could not force local law enforcement agencies to enforce the Brady Act. And ultimately, the Seibelius case saw the Court rule that the federal government could not force the States to expand Medicaid. So what does this have to do with the rest of the ACA? Because the Court has clearly established that the states can refuse to assist in the implementation and enforcement of federal law by establishing a policy of non-compliance through state statute.

When we decided to take this approach, in essence, the state would be telling the federal government that if they wanted to see the ACA enforced or implemented in Georgia, they would have to provide their own resources to make it happen.

We all know that the federal government isn’t equipped to implement the ACA on their own; it would require the states to help them. I hoped that the program would collapse under its own weight and we could clear the way for the debate about what should replace the ACA.

The initial version of the bill was labeled HB 707, and it broadly prevented any political subdivision of the state or state agency from assisting in the implementation or enforcement of the ACA. We immediately ran into issues. It turns out when then-Speaker Nancy Pelosi (D-CA) stated that the act would have to be passed to find out what is in it, she wasn’t kidding.

Even as we were working on our bill, the federal government was working on additional rules and regulations around the ACA. In short, no one still knows what is in it. And it turns out the ACA addressed all kinds of things that had nothing to do with healthcare, such as student loan programs.

If we had left the bill in its initial form, we would have ended up preventing someone at a college in Georgia from assisting a student from getting a student loan. That wasn’t our intent, so we pushed on.

The second iteration of the bill featured what I will call a filter. It set up a system that would have prevented political subdivisions of the state and state agencies from participating in or implementing the ACA unless specifically approved by the Georgia General Assembly.

This was the iteration of the bill that received most of the debate — and one I hope will be tried in other states — as we tried to figure out the impact of this structure. Also, I personally felt this was the strongest version of the bill because it would have allowed for us to take an opt-in approach; we could have said no to the navigators, but yes to the student loan assistance.

Ultimately, we decided to narrow the focus to specific aspects of the ACA so that we could prevent the commandeering of Georgia’s resources for the ACA’s implementation. The final version of HB 707 was passed out of the legislature as HB 943 and is now awaiting Governor Nathan Deal’s signature. It does the following:

  • Prevents the use of state resources to advocate for the expansion of Medicaid.
  • Prohibits any political subdivision of the state from establishing an exchange as defined in the ACA.
  • Prevents the use of our state institutions or resources from being used as part of the ACA Navigator program.

It isn’t as far reaching or as comprehensive as I would have hoped, but it certainly moved us in the right direction toward pulling back from the ACA in Georgia.

Perhaps other states will take the progress even further. But most importantly, I hope this establishes a new trend amongst the states that we can begin to use the anti-commandeering doctrine to battle federal overreach at every opportunity.

Image credit: Turner for House

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