States should treat ObamaCare like REAL ID

Just a few days after Judge Roger Vinson’s outstanding ruling that entirely struck down ObamaCare as unconstitutional, some of the states involved are beginning to refuse to implement the law:

“For Wisconsin, the federal health-care law is dead,” Attorney General J.B. Van Hollen said in a statement, unless Judge Vinson’s decision is stayed by the 11th Circuit Court of Appeals. Florida Governor Rick Scott said he had no intention of wasting “time and money” executing the for-now defunct law, and his insurance commissioner returned a $1 million federal assistance grant. Idaho will also freeze implementation, and we hope the remaining 23 states will join the rejectionists.

For all the liberal squawking, Florida, et al., are well within their legal rights: A federal court issued a binding judgment voiding the law, with Judge Vinson noting that he trusted the Administration would obey the “long-standing presumption” that such a judgment is “the functional equivalent of an injunction.”

Yet the White House and Health and Human Services have already said they’ll continue running ObamaCare as if nothing has changed. Imagine the rule-of-law furor if the Bush Administration had said a wiretapping or other civil liberties ruling didn’t matter.
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Even if a stay is granted, the states should say that the uncertainty about the survival of ObamaCare is so great that they shouldn’t have to squander resources implementing it. The states could simply refuse to do so and let the feds take over. An alternative is to implement their own market friendly alternatives for ObamaCare’s “exchanges” and other state-based policy decisions, even if the Administration objects. HHS has the option of running the exchanges for the states, but it will find this difficult to do if a majority of states resist.

As Bob Barr noted on Wednesday, the ruling doesn’t seem to matter since “in this arrogant attitude, Obama is acting as did one of his predecessors — Andrew Jackson — who once thumbed his nose at the Supreme Court when it issued an opinion with which he disagreed; saying, ‘[Chief Justice] John Marshall has made his decision; now let him enforce it.’” Nevertheless, Florida returning the money for implementation is significant, and I do think other states will follow suit; hopefully, Georgia, which was party to the lawsuit that Vinson ruled on, will be among them.

It’s great that the 1099 was repealed, but the individual mandate is still a problem; even a vulnerable Democrat like Sen. Ben Nelson acknowledges that (though he voted against repeal in the Senate). And what’s good for the goose is good for the gander. If you’re going to push a mandate that people buy health insurance an equally absurd law that would require people to buy a gun is entirely fine. No whining, liberals.

Yeah, Democrats are going to pull out the occasional statist Republican, or whatever Charles Fried is calling himself these days, to support their expansive reading of the Commerce Clause. And by the way, Mr. Fried, John Marshall may have been in the Virginia legislature at the time of ratification, but the Federalist Papers, the series of editorials used to sway New Yorkers into supporting the proposed Constitution, is not at all ambiguous on how the Commerce Clause should be interpreted.

It’s hard to figure out where the Supreme Court is going on ObamaCare. It’s sad to say that Justice Anthony Kennedy could, if he wanted to, tell us all how he felt about the case now to save us the drama. At the very least the law has been marginalized until legitimized (using that word losely in the context of the sometimes questionable decisions of the Supreme Court). If Republicans can take back the White House and the Senate in 2012, they’ll repeal it and this fight is over. However, there is precedent for a law to be essentially nullified with no real action from states other than the outright refusal to implement it.

In 2005, Congress passed the REAL ID Act as part of an emergency spending bill. REAL ID ostensibly established a national ID card by requiring states to meet certain federal requirements for drivers licenses. Since passage of the law, states have been refusing to implement the requirements of the law - at least 17, likely more by now - either because they don’t believe should have to meet federal standards or they view it as an unfunded mandate.

States have a vested interest in protecting citizens from what they view as unjust or unconstitutional federal actions an unfunded mandates (ObamaCare is going to cost states a lot of money due to the expansion of Medicaid). REAL ID is still law, but not many states are compliant for these very reasons. ObamaCare should be treated the exact same way.


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