PHOENIX (Mar. 31, 2015) โ Today, theย Arizona Senate passedย a bill toย create significant roadblocks for implementation of the Affordable Care Act, leaving the federal program without an enforcement mechanism in the state should it become law.ย
Introduced State Reps. Justin Olson and Vince Leach, House Bill 2643 (HB2643) would prohibit the state in various ways from โfrom using any personnel or financial resources to enforce, administer or cooperate with the Affordable Care Act.โ
Today, the state Senate passed the bill by a vote of 16-13. Itย previously passed the House by a vote of 36-21.
PRACTICAL EFFECT
Most prominent in this list of prohibitions is a ban on โfunding or aiding in the prosecution of any entity for a violation of the act.โ This would prevent the Arizona Department of Insurance (DOI) from investigating or enforcing any violations of federally mandated health insurance requirements, something that will prove particularly problematic for the feds.
State insurance commissioners and departments serve as the enforcement arm for insurance regulation in the states. So, when people have issues with their mandated coverage, they will have to call the feds.
โDisputes over these mandates arise underย federal,ย not state law,โ said Mike Maharrey of the Tenth Amendment Center. โThe federal Department of Health and Human Services cannotย commandeer the Arizona Department of Insuranceย to forceย them or to investigate alleged violations if this bill passes. And because at present there is no federal health insurance agency and Congress is not likely to create one given the substantial opposition to Obamacare, theyโll just have to figure it out on their own.โ
Additionally, the bill expressly prohibits the state fromย โLimiting the availability of selfโfunded health insurance programs or the reinsurance or other products that are traditionally used with selfโfunded health insurance programs.โ
According to Jack Biltis at Forbes, โMoving to a partially self-funded (aka partially self-insured) plan allows an employer to overcome most of the burdensome regulations and taxes, potentially reducing insurance costs by 40%-80%.โ This is because self-insured health plans are exempt from many of the taxes and mandates that ObamaCare otherwise imposes on businesses and individuals. The NY Post called moving to these plans an โescape hatch.โ And Obamacare supporters at the Center for American Progress considered such moves to be a serious threat to the viability of the federal act:
The result of this shift could cause an insuranceย premium death spiral and threaten the stability of the exchangesโthe health care lawโsย new insurance marketplaces.
By preventing the state from taking actions to limit the availability of these self-funded programs, HB2643 creates a firewall against what government-run health programs are hoping to do โ increase both federal and state control over them.
The bill also expressly prohibits the creation or operation of a health insurance exchange for the ACA. While former Governor Jan Brewer decided that the state wouldnโt create one, Maharrey said leaving such a big decision to the fate of a future Governor is precarious, at best.
โI donโt expect the new Governor to suddenly change course on an exchange, but you never know,โ said Maharrey. โGov. Ducey has alreadyย flip-flopped on Common Core, so we canโt really trust them to do the right thing on this either. Thatโs why an express prohibition on creating an Obamacare exchange in Arizona is an additional protection for the people.โ
Shifting the burden for health insurance exchanges to the feds helpsย overwhelm the implementation of Obamacare. Some analysts suggest that the fedsย only have the capacity to do so in 30-40 states over the long term, and any more than that will help collapse the system.
Beyond these prohibitions, the bill could cause some difficulty for IRS collection of the Obamacare tax. Currently, the IRS has no practical way to collect tax fines from people who refuse to pay them for lack of coverage. But, should the IRS ever gain Congress approval to start using liens to collect failure to pay penalties from people who refuse to sign up, they might notย be able to record them with any level any county clerks or the Secretary of State in Arizona. Without liens, the IRS is already going to have a difficult time collecting, and if theyโre permanently blocked from using them in Arizona, that would represent a significant layer of protection for the people there.
LEGAL BASIS
HB2643 is a practical implementation ofย Proposition 122, a voter-approved amendment to the state constitution in 2014 that provides a mechanism for refusing state resources to federal programs.
Both Prop 122 and HB2643 are based on a long standing legal principle known as the Anti-Commandeering Doctrine. Over 170 years of Supreme Court precedent, dating from 1842, have supported the idea that states cannot be required to help the federal government implement or enforce their acts or regulatory programs.
The 1997 case, Printz v. US serves as the cornerstone. In it, Justice Scalia held:
The Federal Government may neither issue directives requiring the States to address particular problems, nor command the Statesโ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.
As noted Georgetown Law Constitutional Scholar Randy Barnett has said, โThis line of cases isโฆ considered well settled.โ
NEXT UP
The bill passed after an amendment was added to make sure that the bill would not interfere with the Arizona health care cost containment system, that is, Medicaid.ย The language was added to ensure that cost-sharing agreements previously established between federal and state governments to subsidize certain low-income individuals would not be affected by HB2643. Another minor exemption was included to allow a hospital assessment program to continue without interruption.
Because of these technical amendments, the bill will now go back to the House floor for concurrence. Should the House approve the Senate version, the bill will go to Gov. Duceyโs desk for a signature. If they reject the Senate version, the two Houses will meet in conference to hammer out the final text that will be sent to the Governor.
TAKE ACTION
In Arizona, follow all the steps to support this bill at THIS LINK
All Other states, take action against the ACA in your state at this link.
The Tenth Amendment Center is a national think tank that works to preserve and protect the principles of strictly limited government through information, education, and activism. The center serves as a forum for the study and exploration of state and individual sovereignty issues, focusing primarily on the decentralization of federal government power as required by the Constitution. ย This article originally appeared at: ย http://blog.tenthamendmentcenter.com/2015/03/arizona-senate-votes-16-13-to-ban-crucial-obamacare-enforcement-mechanism/
