- The Washington Times - Thursday, August 25, 2011

Nearly a year and a half after President Obama signed his landmark health care overhaul into law, the growing rebellion in the states — being fought out in courts and state legislatures — shows few signs of easing.

This year alone, 13 states have enacted laws trying to exempt their residents from major provisions of the health care law, while more than half have filed or joined lawsuits challenging the law’s constitutionality.

Some states are hedging their bets by taking preliminary steps to implement the law while refusing federal funds and mandates as the high-stakes political battle over the health care plan continues to play out.

All told, 17 states have enacted laws rejecting parts of the Affordable Care Act, according to a report by the National Council of State Legislatures.

“These are political moves,” said Wake Forest University law professor Mark Hall, an analyst on health care policy who thinks that challenging the federal law through legislation is a bad idea. “The Constitution couldn’t be clearer that the federal law is the supreme law of the land. The only question is whether the federal law is valid.”

Geographically and politically, the list of states enacting legislation against the measure offers few surprises. They generally are located away from the coasts and both legislative chambers are led by Republicans, with the exception of Virginia and Louisiana, where Democrats control the Senate.

The most common objection to the measure is seen by many as the linchpin of the whole law — a mandate on individuals to either buy health insurance or face a fine. Fifteen states have enacted legislation resisting that mandate in some way.

Some states have gone as far as modifying their own constitutions. In November, voters in Arizona and Oklahoma approved constitutional amendments outlawing the individual mandate. Similar amendments are on the November 2012 ballots in Alabama, Florida, Montana and Wyoming. All of the states but Wyoming also include in their amendments language targeting the law’s requirement that larger employers offer coverage.

Four states — Georgia, Missouri, Oklahoma and Texas — have approved interstate “compacts” that would exempt them from the law altogether, in the unlikely event the alliances were approved by a majority in Congress. It’s a matter of dispute whether or not the compacts would require a signature from the president to go into effect.

“A lot of governors are sitting back, saying, ‘We’re going to do what we think we have to do minimally, but we’re still kind of waiting to see what the requirements are,’ ” Oklahoma Gov. Mary Fallin, a Republican, said in an interview this month. With state Republicans firmly opposed, Mrs. Fallin declined a $54 million grant from the U.S. Department of Health and Human Services in April to help implement the law.

In May, North Dakota Gov. Jack Dalrymple, a Republican, signed legislation explicitly rejecting mandates under the Obama law, despite an opinion from the state attorney general that the state could not enact a law that, in effect, nullifies a federal law.

In New Hampshire, the only Northeastern state to enact legislation against the Affordable Care Act, legislators established an oversight committee whose approval is required for implementing any federal health care legislation. The measure didn’t require a signature by Gov. John Lynch, a Democrat.

Public opinion seems to mirror the state-based revolt, despite assurances made last year by Joel Benenson, a pollster for Mr. Obama, that growing numbers of voters would support the law once they became familiar with it. In a recent Rasmussen poll, 55 percent supported repeal — the same percentage that supported repeal just after the law was enacted. Opposition to repealing the law has risen slightly since then.

Still, the future of the state laws is doubtful. Legal analysts have sharply divided predictions on how the Supreme Court will rule when one or more of the lower-court cases reaches the high court. The high-stakes decision is expected to be made well before the November 2012 elections.

Many states face a Catch-22 as they fight to kill a law they are required to implement in the coming years, and the clock is ticking. State governments are 16 months away from the deadline included in the text of the Affordable Care Act to either show adequate progress toward setting up an “exchange” to help provide health insurance or face the prospect of the federal government stepping in and doing it for them. In Idaho, for example, opposition is particularly intense among state legislators, but Gov. C.L. “Butch” Otter, a Republican, announced Monday that he would apply for $40 million in federal grant money by the Sept. 30 deadline to help set up the mandated insurance exchange.

“If we don’t apply for the grant, [then] the federal government will come in and establish and impose upon us an insurance exchange,” he told reporters.

Enacting legislation that contradicts the measures officials must put into place is counterproductive, said Wake Forest’s Mr. Hall, who thinks the health care battles should be fought in courtrooms, not in state legislative chambers.

“If they’re just going to wash their hands of the whole thing, they’re basically inviting the federal government to come in and do it for them,” he said.

Mr. Hall called the legislative efforts a “spirited assertion of state rights” — and not much more than that. “It reminds me of governors who stood at the doors of their state universities and refused to accept the civil rights laws,” he said.

Some opponents of the Affordable Care Act say states have the power to substantially hinder implementation.

“What we would like them to do is simply ignore the whole thing,” said Michael Maharrey, a spokesman for the Tenth Amendment Center.

He said he would like to see states respond in much the same way they did to the Real ID Act of 2005, which required states to follow federal guidelines in issuing driver’s licenses. Half the states enacted legislation against participation, and all had applied for or received extensions by the 2008 deadline.

“Here we are almost six years later and it’s still not fully implemented, because states just won’t do it,” Mr. Maharrey said.

Many states took almost immediate legal action against the federal health care law. Virginia and Florida filed lawsuits against the act just days after it was approved in March 2010. Since then, 25 states have signed on to Florida’s challenge, and Oklahoma filed suit on its own in January.

Not every state challenging the bill is also pursuing legislation against the Affordable Care Act. Colorado Attorney General John Suthers, a Republican, has joined the Florida lawsuit, which is not supported by the Democrat-led legislature and governor.

Most state legislatures that have passed opposing measures didn’t take action until this year, although 40 states considered a variety of legislation as the health care law was debated in 2009 and then passed in 2010. The Arizona Legislature led the way in opposing the individual mandate when, in June 2009, it became the first state to put a constitutional amendment on the ballot.

“What makes Arizona stand out a little bit was that their proposal became an example or model for quite a few other states,” said Richard Cauchi, health care director for the National Council of State Legislatures. “A number of states filed bills using identical or similar language.”

• Paige Winfield Cunningham can be reached at pcunningham@washingtontimes.com.

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