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SCPC: The “Nullification” Bill, Then and Now

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NULLIFY
WHAT THE BILL DOES, AND COULD, ACCOMPLISH

Originally known as the “nullification” bill, H.3101 has gone through many changes since it was originally pre-filed for the 2013 legislative session. Here we compare the bill passed by the House in May 2013 to the latest strike-and-insert amendment filed in the Senate.

The Original Bill

The legislation passed by the House in May 2013 would have done the following:

  • Prohibited public employees from assisting in the enforcement of the provisions of the Affordable Care Act (ACA).
  • Allowed the Attorney General (but not an individual) to bring an action in the name of the state against any entity causing harm by implementing ACA.
  • Given the General Assembly the “absolute and sovereign authority” to refuse to enforce provisions of ACA that it deems to exceed the authority of Congress. These provisions were not specified, making the bill largely meaningless.
  • Allowed for a tax deduction to offset the federal individual insurance mandate penalty
  • Prohibited the state from running a state-run health insurance exchange.

The Amendment

If the bill were to include the strike-and-insert amendment filed by Sen. Tom Davis, H.3101 would contain the following:

An anti-commandeering provision. The general premise of the anti-commandeering doctrine – upheld by the Supreme Court in Printz v. United States – is that the federal government may neither issue directives requiring the states to address particular problems nor command them to administer or enforce a federal regulatory program. The Senate proposal would prohibit state officials from enforcing, or using state resources to enforce, certain provisions of the ACA, including:

  • Establishment of a state-run health insurance exchange.
  • Assistance of enrollment in any health insurance exchange.
  • Enforcement of sections of the ACA requiring individual and employer insurance mandates.
  • Applications for grants in support of enrollment encouraged by individual and employer mandates.

The amended bill would, however, make certain exceptions to the prohibition on ACA’s enforcement, including the allotment of Medicaid under current standards; portions of the ACA that give states flexibility in administering Medicaid; ACA regulations that must be carried out by service providers in order to secure Medicaid/Medicare reimbursements; and ACA regulations that must be administered by the state Department of Insurance. Essentially, then, even if the bill in its current form were to pass, the state would still comply with components of the Affordable Care Act.

A provision requiring that federal Obamacare dollars be treated on a contractual basis. Perhaps the key difference between the bill passed by the House and the Senate proposal is the requirement that public officials be held accountable for the acceptance of federal money. As first outlined by SCPC, the state’s elected officials cannot assert state sovereignty over policy matters while simultaneously taking millions of dollars from the federal government for those programs. Put bluntly: South Carolina cannot expect to control its own affairs while Washington pays the bills. The Senate proposal would establish a process by which all state entities, before applying for and accepting federal dollars, would explain – in detail – what the money is for, what policy prerogatives the state must cede to the federal government in order to get the money, and how the consequently funded program, regulations, or mandates will affect individuals and businesses. Agencies and departments would not be allowed to request or accept federal funds tied to the ACA that are not specifically listed in the governor’s executive budget. Each program funded in whole or in part by ties to the ACA would receive an up or down vote in both legislative chambers. The entire process would be repeated annually.

The idea behind the amendment is both reasonable and practical: It would force the governor and legislators to take responsibility for the ObamaCare-related funds they bring into this state. What makes the implementation of ObamaCare possible in the first place, after all, is the longstanding practice by state officials of trading state prerogatives for federal money. The Senate’s amendment would bring that transaction into the open.

Assessment

By establishing a clear process by which the state applies for and accepts federal funds and the strings, mandates, and regulations on individuals and businesses that come with it, the Senate proposal would take a huge step towards stopping ObamaCare in South Carolina.

Reclaiming health care freedom in South Carolina means a lot more than simply rejecting ACA’s formula for Medicaid expansion and refusing to set up a health care exchange. It means recognizing the sovereignty lost when states receive federal funding in exchange for regulatory compliance. The proposed Senate amendment to H.3101 is a laudable attempt to accomplish both.

Posted by on March 4, 2014. Filed under SC NEWS. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry
  • Jim Hargett

    Thanks Joshua! for all you do. I called in last week to Kibler’s radio program when he had Senator Tom Davis on the air. I asked Tom how South Carolina would deal with all the lawsuits this is going to bring on our state and Tom seemed defiant in saying, “we should not fear these lawsuits”. This is the major apprehension I hear in the statehouse and with Mick Zais in the department of Education about abating Smarter Balanced testing.