GOP-led states are considering various tactics to obstruct implementation of the federal health reform law, the Washington Times reports.
One strategy being considered by Republican state lawmakers is the formation of interstate compacts, which act as loose treaties between states and have the force of federal law. Lawmakers believe they can derive authority for the compacts from Article 1 of the Constitution, an "out-of-the-box approach" to circumventing the reform law, according to the Times. More than 100 compacts have been approved, but they usually only solve cross-border issues, such as transportation.
Missouri state Rep. Eric Burlison (R) introduced a bill (HB 423) this month authorizing a compact that would give states authority to regulate health care matters and specifically declare that the arrangement trumps federal law. Under the compact, lawmakers would coordinate efforts through the Health Care Compact Alliance.
Skeptics say compacts require the approval of Congress and President Obama. However, Eric O'Keefe, chair of the Health Care Compact Alliance, said whether legislation establishing the treaties would require presidential approval is "ambiguous."
Nick Dranias, director of the Center for Constitutional Government at the Goldwater Institute, said there is precedent for such agreements without presidential endorsement, including a federal law that permits preapproved compacts to manage enforcement of criminal laws. He said, "You could effectively block the enforcement of many, many federal laws" with interstate compacts (Dinan, Washington Times, 2/27).
At Least 11 States Consider 'Nullification'
Meanwhile, GOP lawmakers in at least 11 states are considering legislation that would nullify the reform law, USA Today reports. Earlier this month, the Idaho House of Representatives passed nullification legislation (HB 117) that would establish legal supremacy over the federal government in regard to health reform.
Some political scholars believe that the Department of Justice easily could block nullification efforts with federal lawsuits (Adams, USA Today, 2/28). Others say that states will not be able to disobey federal rule.
According to Politics Daily, previous attempts to establish nullification laws have been dismissed or denied by U.S. presidents and the Supreme Court. David Adler, founding director of the McClure Center for Public Policy Research, said that measures seeking nullification are even less viable than usual because states have a good chance of succeeding in their lawsuits opposing the constitutionality of the reform law (California Healthline, 2/16).
However, Michael Boldin, executive director for the 10th Amendment Center, said states already have proven their ability to nullify federal law by legalizing medical marijuana and refusing to implement a 2005 law creating a national identification card. Boldin said, "When enough people say no to Washington, D.C., and enough states pass laws backing them up, there's not much Washington, D.C., can do to enforce the laws" (USA Today, 2/28).