ALEC (the American Legislative Exchange Council) is at it again. With their last lobbying effort to nullify the individual mandate in tatters, the group has moved on to a frontal assault on the ACA.
A new Alec proposal, approved by its annual meeting in Chicago in August and published as a model bill for adoption by state assemblies across the nation, would scupper the federal health insurance exchanges set up under Obamacare. The Health Care Freedom Act, as Alec calls its model bill, threatens to strip health insurers of their licenses to do new business on the federal exchanges should they accept any subsidies under the system.
Let's break this down after the break.
Their "Problem"
ALEC's Healthcare Freedom Act targets 42 U.S.C. 18082, the section of federal law specifying the conditions under which employers must accept "shared responsibility" to provide money to employees to purchase insurance coverage on the individual exchanges. Cue the faux outrage from the right wing echo chamber when employers are called upon to be flexible, and accept responsibility for their actions.
Get it. Those bastards at the IRS are trying to say that employer can't evade their responsibility under federal law through accounting tricks. Who the hell do they think that they are? Don't they know that the law is for the little people?
Their "Solution"
ALEC's so called "Healthcare Freedom Act" proposes to remedy employers the embarrassment of being called to account by federal authorities by having state authorities take actions that nullify federal law. See health insurance, all insurance, is normally regulated at the state level. This is why we have a patchwork of health coverage in the country, where coverage conditions vary by state. If you live in Vermont, that can be great. But if you live in Ohio, you've already got ALEC members pushing this model legislation that would strip insurance companies which comply with federal law of their ability to issue new policies in the state. The model legislation limited the prohibition of new business to the federal exchanges, but this broader language probably reflects the panicked efforts of LSC staff to maintain a fig leaf of constitutionality. See it's a long established matter of law in this country that where state and federal law conflict, federal law prevails.
The "Truth"
Most of us probably remember McCulloch v. Marlyand from our American history classes. Vaguely at least. Someone needs to give ALEC basic instruction in American constitutional law. ALEC's Healthcare Freedom Act supposes that it is within the power of states to pass legislation which interferes with the ability of the Congress to enforce federal legislation within the states. This idea is called nullification.
ALEC is a huge fan.
The substance of McCulloch v. Marlyand dealt with whether Maryland could impose a tax on out of state banks. Although this applied to all states charted outside the state, at the time the only bank subject to the tax was the Second Bank of the United States. The Bank of the United States had been chartered by Congress, was headquartered in Philadelphia, and had a branch in Baltimore. In overturning the law, the US Supreme Court established two massively important principles of American law. The first is that where the Constitution is silent on a matter, the Congress has the implied power to take such actions as are necessary to provide for the general welfare. The second is that of the supremacy of federal law. Where state law aims to inhibit the execution of federal law, it is unconstitutional.
These matters were settled almost two hundred years ago, although it took a Civil War to make the point stick. (Fun fact, Ohio decided that McCulloch v. Maryland was a bunk decision, and attempted to pas a state tax on the Bank of the United States. The Supreme Court overturned the law.)
History lessons aside, the point is that ALEC is trying to pry upon established legal precedents closed almost two hundred years ago. They are attacking the very foundations of our system of government. Hundreds of state lawmakers, and dozens of private members, are party to an organization calling for the overthrow of our system of government. I hesitate to put it so boldly, but these people are trying to pass laws in violation of two hundred years of legal precedent. They are trying to tear these United States to pieces, such that they might be all the easier pickings for their corporate patrons.
ALEC politicians deserve to be challenged as to why they are a member of an organization that promotes nullification. If they insist that the themselves don't support nullification, they should be asked if they will issue a public statement calling upon ALEC to retire all model legislation which promotes nullification as a policy option. ALEC's private members deserve the same. If ALEC continues to promote nullification as an option, their patriotism, and that of their members, deserves to be called into question.