Last summer, the United States Supreme Court in National Federation of Independent Business vs. Sebelius (NFIB) found the Patient Protection and Affordable Care Act (ACA) to be constitutional. The re-election of President Obama confirmed that the law would continue to move forward. Yet while most other states are working hard to implement the new law so as to best serve their state’s residents, Oklahoma has instead decided to devote its energy and resources to waging a stubborn, counter-productive, and hopeless last stand.
Shortly after the re-election of President Obama, Oklahoma reaffirmed its unwillingness to implement the ACA. Gov. Fallin announced last November that Oklahoma would not be creating a state based exchange, nor would we be accepting federal dollars to expand health care coverage to low income working Oklahomans. More recently, Insurance Commissioner John Doak wrote to the Center for Consumer Information and Insurance Oversight (CCIIO), expressing his opposition to the ACA and his inability to enforce the health insurance regulations defined. As a result of this, the Deputy Director responded that the federal government will directly enforce the individual and group market reforms set forth in the ACA.
Meanwhile, Oklahoma Attorney General Scott Pruitt is continuing to pursue the lawsuit against the ACA filed in June 2011. Since the original law suit challenging the constitutionality of the “individual mandate” was mooted with the decision in NFIB, General Pruitt is now challenging the availability of premium tax credits to subsidize the purchase of insurance on Oklahoma’s federally-operated exchange. A ruling is currently pending in the United States District Court of the Eastern District of Oklahoma.
During the 2013 legislative session, several bills were introduced in both houses to nullify the ACA. HB 1021, which aims to block implementation of the ACA in Oklahoma, passed the House of Representatives earlier this month and now awaits Senate consideration.
Earlier versions of HB1021 and other introduced bills would have made it a felony offense for any United States government official or employee to enforce or attempt to enforce the ACA, punishable by a maximum fine of $5,000 and up to five years in prison. Oklahoma public officials and employees found guilty of violating the law would have been subject to a misdemeanor offense, punishable by “imprisonment in the county jail not exceeding two years, or by a fine not exceeding $1000, or both.”
While the amended version of HB 1021 strips out the criminal penalties for anyone found to be enforcing the ACA, it still declares the ACA unconstitutional because it violates the 10th Amendment to the U.S. Constitution which states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The bill insists the federal government did not have the power to enact the ACA because it was nowhere expressly granted by the United States Constitution.
The argument regarding the unconstitutionality of the ACA runs counter to the U.S. Supreme Court ruling in NFIB. The Court found that Congress did have the power to enact the ACA under its power to levy taxes. Eight states have introduced ACA nullification legislation. The nullification bills such as HB1021 were provided to legislators from the Tenth Amendment Center, a group that provides model legislation for state legislators wanting to nullify federal laws in their state.
HB 1021 is primarily a political message. If enacted, this bill will be meaningless and void due to the Supremacy Clause of the United States Constitution. Article VI of the U.S. Constitution reads in part – “This Constitution…shall be the supreme law…anything in the Constitution or laws of any state to the contrary notwithstanding.” The concept of federal supremacy is not new. Supreme Court precedence has explained that when Congress has showed an expressed or implied intent to regulate in an industry, state action in conflict with that intent is preempted. By enacting the ACA, Congress has indicated an explicit intent to regulate in the health insurance industry. Since HB 1021 seeks to nullify the ACA in Oklahoma, the bill directly conflicts with congressional intent and itself is void.
To repeal federal legislation takes an act of Congress or a ruling of unconstitutionality by the Supreme Court. State legislatures cannot void a federal law by passing nullifying legislation. Oklahoma legislators’ efforts in nullifying the ACA are nothing but a waste of time. Even the Oklahoman editorial board, outspoken opponents of the ACA, called attention to the absurd actions of the Oklahoma legislature.
By ignoring the ACA and wasting Oklahoma taxpayer dollars debating and passing laws that are void themselves, Oklahoma officials are potentially opening the state to more federal control when it comes to the ACA. Instead of using the ACA to tailor laws that will address the specific healthcare needs of Oklahomans, lawmakers are violating the oath they took upon taking office by producing knowingly unconstitutional legislation to announce their disdain for President Obama’s health care law.