- The Washington Times - Sunday, February 27, 2011

With efforts to repeal the health care law stalling on Capitol Hill, Republican lawmakers in states across the country are turning to another tool in the Constitution to try to limit the law’s reach — interstate compacts.

To backers, it’s almost like discovering a secret weapon hidden within the Constitution. Compacts, which are roughly like treaties between states, have the force of federal law, and a coalition of lawmakers and conservative activists and academics say they could just as easily be used to pry back from the federal government some areas of responsibility, including health care.

Skeptics say the chances for passage are questionable at best, and legal scholars say compacts are probably too blunt a tool to take on the complicated health care system. But to backers, the powers derived from Article 1 of the Constitution represent an out-of-the-box approach with legal and political possibilities.

“That very same article in the Constitution has been used for the federal government to grow its powers for many decades, and so now we’re taking a completely different look at that same section of Article 1 and realizing that perhaps the states can in a very polite way ask the federal government to give our authority back,” said Missouri state Rep. Eric Burlison, who introduced legislation this month authorizing a compact in his state legislature. “This is not health care reform; this is governance reform.”

His legislation would return authority to regulate health care to the states that sign up, and would specifically declare that the compact would trump federal law. States that join would pledge that they intend to tackle health care and would share information through a new Interstate Advisory Health Care Commission.

Mr. Burlison is part of an effort coordinated by the Health Care Compact Alliance, with weekly conference calls for state lawmakers and activists to share tips and talk strategy.

More than 100 compacts have been passed, but they generally are used to solve cross-border problems such as transportation. In the Washington metropolitan region, the subway system is one example.

The key question for the health care compact is whether it would need congressional approval and President Obama’s signature, which he would surely withhold.

That point raises debate. Ted Cruz, a former solicitor general in Texas who has helped pioneer the push for a health care compact, said he thinks a compact would have to win the president’s signature. Eric O’Keefe, chairman of the Health Care Compact Alliance, said it’s “ambiguous” whether such legislation would have to be presented to the president.

Nick Dranias, director of the Center for Constitutional Government at the Goldwater Institute, said he can make a strong argument against needing presidential approval, including using a congressional law that has preapproved interstate compacts dealing with enforcement of criminal laws.

Mr. Dranias said there could be a way to use that to shoehorn in health care compacts, or even go after other areas where states might want to reclaim authority.

“You could effectively block the enforcement of many, many federal laws. Not just the individual mandate, but you could devise this to block all sorts of regulations promulgated by the EPA, or gun regulations by the ATF,” he said.

Adam Winkler, a law professor at the University of California at Los Angeles, said most scholars say any compact that affects federal laws would have to go through Congress, which would then have to send it to the president under the Constitution’s presentment clause.

“This is primarily political theater more than anything else,” Mr. Winkler said. “They need congressional consent, and it doesn’t seem likely you can get a bill through the House and Senate and have it signed by President Obama that exempts states from what is President Obama’s signature achievement.”

He said the same would likely be true of other attempts to override federal environmental or gun laws, as some interstate compact backers have proposed.

Still, he said, the effort alone signals a growing movement to think about how government power is divided in the U.S., and he said that is a welcome development.

All sides generally agree that the compact represents another sign of frustration among voters over the scope of federal powers as well as a belief that states are closer to their constituents and are better able to craft policies that fit.

“We really want to change the political argument from one over policy to one over who decides. So behind this is an effort to ask the fundamental question: Who should decide?” said Mr. O’Keefe.

The compact debate also could put some Senate Democrats on the spot.

Missouri, where Mr. Burlison is pushing his bill, has registered its disapproval of the health care law, with 71 percent of voters last year backing a referendum opposing the law. Yet Sen. Claire McCaskill, a Democrat who is up for re-election in Missouri in 2012, voted for the measure.

A handful of other Democrats in swing states could face similar pressures should their legislatures try to join a compact.

“It’s challenging as a political matter to cast a vote that says the citizens of my state want out of Obamacare, but I’m not going to let them because I think those of us in Washington know better than the citizens back home what’s good for them,” said Mr. Cruz, a former Texas solicitor general who has announced a bid for the seat of retiring U.S. Sen. Kay Bailey Hutchison.

Even as health care compact backers were ramping up their efforts, another group that leans to the left of the political spectrum was ramping up efforts to pass an interstate compact to make the Electoral College obsolete.

That compact would have states agree to force their electors to vote for the candidate who wins the most votes overall, thereby bypassing the system the Constitution sets up in which a candidate could lose the total vote but still win the White House.

A handful of states and the District of Columbia have signed up, and it goes into force if states with enough electoral votes to constitute a majority and thereby swing an election join in.

Mr. Winkler, the UCLA law professor, said that compact has a better chance of passage and that it’s “not crystal clear” whether Congress would have to approve that compact, since the Constitution already gives states broad latitude to control their electoral votes.

Mr. Burlison’s compact in Missouri isn’t the only option. Mr. Dranias at the Goldwater Institute is pushing his version that he says can circumvent further congressional approval.

In Texas, state Rep. Tryon D. Lewis has introduced a bill to create an interstate compact to alter the terms of Medicaid, the federal-state program that provides health care for the poor. States say the federal health care law will only add to the amount of their budgets consumed by the program.

Mr. Lewis, a Republican, said his goal is to have so many states consider joining his compact that Congress decides it has to negotiate.

“If that many partners come to them and say we can’t pay for this anymore, we’ve got to change, I think the likelihood is high that something could be done, because otherwise the states may have to say we can’t [afford Medicaid], because we can’t, and then all the burden would go on the federal government,” he said.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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