Georgia Legislators Go For A #Constitutional Option

December 13, 2013 9:09 am

by Nathan · 22 comments

The tenth amendment to the US Constitution has been bantered back-and-forth among a lot of conservatives as “the solution” to fix problems stemming from the federal government. The South Carolina legislature has taken the first steps to “gut Obamacare” in their state. Now Georgia is following South Carolina’s lead:

State representative Jason Spencer (R-Woodbine) along with three other representatives will be holding a press conference on Monday, Dec. 16 to discuss the proposal.

“The bill’s main thrust is to prohibit state agencies, officers and employees of the state from implementing any provisions of the Affordable Care Act, leaving implementation entirely in the hands of the federal government, which lacks the resources or personnel to carry out the programs it mandates,” said Rep. Spencer in a press release.

Based on the long-standing legal principle, the anti-commandeering doctrine, the legislation is on strong legal grounds. In four major cases from 1842 to 2012, the Supreme Court has consistently held that the federal government cannot “commandeer” states, requiring them to enforce or expend resources to participate in federal law or regulatory programs.

[Judge Andrew] Napolitano noted that the plan was not only legal, it would be highly effective. “If enough states do this, it will gut Obamacare because the federal government doesn’t have the resources … to go into each of the states if they start refusing.”

I’m not a constitutional expert/scholar/unicorn, nor do I claim to be. I don’t know if this will work, but perhaps it will. Not to be pessimistic, but I don’t see this as being a priority for the leadership in either chamber.

Of course, a lot members of the General Assembly read our fine blog, so it could suddenly pop up on the radar if there’s enough buzz among the Republican caucus in both chambers. It is an election year after all, and the Obamacare #failwhale will probably be on the minds of primary voters in May.  No doubt a lot of anti-incumbent candidates will harp on this while campaigning. I just hope Charlie’s liver is up for the debate on this #constitutional option as it winds its way through the whirlwind that will be the 2014 legislative session.

peachpundit (@peachpundit) December 13, 2013 at 9:09 am

New post: Georgia Legislators Go For A #Constitutional Option http://t.co/2rBxUySqkn #gapol

Jean R. Ewing (@GenNerd) December 13, 2013 at 9:12 am

Georgia to follow S. Carolina’s lead to use the 10th Amendment to “gut #ObamaCare”

http://t.co/hreywoVM16 #p2 #tcot #hcr via @peachpundit

View from Brookhaven December 13, 2013 at 10:12 am

Yeah…I’m not sure we should look to South Carolina as a model for anything we do in this state.

Charlie December 13, 2013 at 10:14 am

But it worked so well in the 1860′s.

Napoleon December 13, 2013 at 11:18 am

Don’t forget 1832 as well.

Charlie December 13, 2013 at 11:20 am

I’m not that old.

seenbetrdayz December 14, 2013 at 6:04 am

How about 1776?

griftdrift December 13, 2013 at 10:43 am

The anti-commandeering doctrine! Pip! Pip! Tally ho!

radix023 December 13, 2013 at 10:58 am

Some actual information: the Tenth Amendment Center’s presentation on the concept
http://tenthamendmentcenter.com/legislation/obamacare/

I’m already contacting Liberty candidates for Ga legislature on this issue.

Charlie December 13, 2013 at 11:05 am

OK, let’s start with #4, that states should sue to stop these illegal taxes under ACA.

Wasn’t the key point in the ruling by the US Supreme Court that the mandate was a tax, and therefore it is Constitutional?

You really think that SCOTUS is now going to say that the bill they already found constitutional as a tax is now going to be unconstitutional because it contains taxes? Really?

radix023 December 13, 2013 at 11:23 am

Since it was explicitly passed and sold as a penalty not a tax, and the Judicial branch lacks the power to legislate, I think there is still room to challenge it.

Personally, I’m waiting on Volokh and Co to weigh in. They will at least give the idea an honest hearing (and have the legal chops).

Charlie December 13, 2013 at 11:29 am

You’re offering an opinion while skipping the fact that I presented above.

It actually HAS gone through SCOTUS. It was upheld. And how it was sold/presented was a key part of that argument.

Strong feelings are nice. But they need to match the actually facts of what’s going on and not what you want to happen. It’s the only way to win.

Napoleon December 13, 2013 at 11:37 am

Charlie, the gist of the OK suit is the IRS is using the penalty against state as it would any private employer.

As I understand the issue on the individual mandate, it deals with issues pertaining to substidies that taxpayers in those 34 states don’t receive, but are received in states that set up a state exchange, so while taxing is within the power of Congress, taxes cannot be opposed on some and not others, through how subsidies are awarded.

However, it should be noted the federal court dismissed the part of OK’s suit dealing with the individual mandate stating the SCOTUS had already recently ruled on it.

radix023 December 13, 2013 at 11:38 am

This quickly goes into the weeds. The PPACA was not upheld as written. It was rewritten by SCOTUS (specifically Roberts). Rather than go down a rathole, I’m pending the opinions of people that I trust whose legal sophistication is far beyond my own. I’m not discounting that your position may be entirely correct, but I just haven’t gotten to the end of that string to close off all possibility.

Charlie December 13, 2013 at 11:42 am

Funny thing about legal/constitutional arguments. They’re only about the weeds. And if you’re only going to solicit opinions from those who you agree with, then you’re likely to only hear one side of an argument. The lawyers around here are likely to tell you that’s not how they prepare for or win cases.

Napoleon December 13, 2013 at 11:57 am

That’s how I usually win cases.

Napoleon December 13, 2013 at 11:55 am

radix023, You seem to forget the administration argued in court that it was a tax, which is why the ACA was written to be enforced by the IRS, not HHS. You are entitled to your own opinion, but not your own facts. Roberts did not rewrite the PPACA, he upheld it on an argument that was made by the administration and backed up via how the ACA set-up enforcement.

radix023 December 13, 2013 at 12:23 pm

The executive also lacks legislative power, so you have made a distinction without a difference. It was passed as a penalty.

Napoleon December 13, 2013 at 3:41 pm

Au contraire! The PPACA gives the administration rule making authority to enforce the PPACA. That means the various agencies can, and are, promulgating rules to add to the nearly 2,000 pages of the act itself.

radix023 December 13, 2013 at 11:43 am

Actually, upon reflection, Sam Olens said the same thing: that states that did not set up exchanges are not subject to the mandate. He said it at one of the Cobb breakfasts, as I recall.

George Chidi December 14, 2013 at 1:05 pm

My first instinct when seeing this was to dismiss it out of hand as partisan grandstanding idiocy. Shall we discuss the very, very ugly history of “nullification” attempts of federal law in southern states? Do we need to bring up Cooper v. Aaron? But now I’m thinking about it. And this is some of the most dangerous legislation I can conceive of, when considering public health in Georgia.

The nullification elements of this bill are going to be summarily thrown out by the first federal judge that sees them, of course. 200 years of case history doesn’t disappear overnight — the federal courts have never upheld a state-level nullification of federal law.

However, the SCOTUS ruling on the ACA said that states don’t have to take the Medicaid funding and expand their state-level programs. This law would codify Deal’s refusal to take the Medicaid money into law. Depending on how it’s written, not only would Deal be denied the authority to change his mind about the expansion now, but he wouldn’t be able to take money that looks like the expansion, even to address the actual, real-world problems posed by the way the ACA is interacting with Georgia law, like the potential disaster at Grady Memorial Hospital.

More to the point: neither would a Deal successor.

Suppose some combination of Tea Party intransigence, weak support from south Georgia due to hospital closures and federal corruption charges sinks Deal, and Jason Carter wins the governors’ race. Carter would be barred from taking the money by law.

It’s a poison pill bill. It’s designed to poison the governor’s chair. If Deal wins, the changes may be reversible, of course — although the Tea Party folks may make even a reasonable reversal politically impossible. But if that’s the goal … they’ll write the bar on the Medicaid money as broadly as possible. That would undoubtedly screw up Medicaid beyond belief, and probably screw up hospitals serving areas with lots of indigent care.

Will it pass? Probably. That’s what makes this more dangerous.

Dave Bearse December 14, 2013 at 2:39 pm

It’s same tack the GaGOP used on gay marriage, and is not unexpected from the Party of No. A difference is that constitutional prohibition of gay marriage won’t have nearly the repercussions. Indeed the gay marriage amendment may inflict relatively little damage before it’s repealed.

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