Two-thirds of Nebraskans don’t want the health care law implemented. Of that number it’s impossible to know how many realize that there is more than one way to fight its implementation. Considering the potential damage the fully implemented law would cause to the economy, quality of care, medical innovation, and individual liberty, it stands to reason that if there is any issue which requires every weapon in the arsenal, fighting the implementation of the health care law is it.
It is not wise to rely on one or two actions to block the implementation of the law.
Weapon #1: The Attorneys General Lawsuit
Of course many are aware of the Attorneys General lawsuit filed in Florida federal court in which Nebraska is taking part. The key issue in the case is whether it is Constitutional for the federal government to force individual American citizens to purchase health care coverage.
While those of us who take an originalist position regarding Constitutional questions can easily cite why we believe this is a "no-brainer", it is no certain thing that our federal court system will see it that way. One need only look at the number of court decisions that exhibit the living, breathing Constitution theorists' point of view to recognize there is no guarantee about the outcome of the case.
In addition to the uncertainty associated with the outcome, the case is likely to take quite some time before finality (likely in the US Supreme Court) is reached. Even on a fast track, it could take as long as two years. It's important to pursue this avenue; a ruling that the law is unconstitutional is needed, unless the bill is repealed by Congress (more on that, below). But it may come too late to undo the damage that will already be done. In taking a closer look at measures contained within the bill, it's now clear that it was intended to be implemented step by step starting immediately.
Fundamental changes will occur to the way Medicare, Medicaid, and general health coverage works. Many of the steps, once taken, will be very difficult to unravel. That method is both at once practical and by design. Considering the complexity of the system, major changes cannot occur overnight - that's the practical side. On the strategy side, the extraordinary amount of resistance to the law's passage means that creating an environment in which all of the momentum leans towards an inevitable implementation is smart.
The bottom line: The Attorneys General lawsuit is necessary but may very likely take so long it will be difficult to unravel the changes to the overall health care system if and when a favorable decision is rendered. Therefore, the Attorneys General lawsuit cannot be the only action taken to stop health care from being implemented.
Weapon #2: Repeal By Congress
This solution is at best, tenuous. The final question regarding whether there will be a Republican majority in the House of Representatives will not be answered until November 2. Opinions are divided on the number of seats Republicans are likely to gain back. While most pundits seem to agree the Republicans are likely to win a majority in the House, the same pool also agrees that it is unlikely the Republicans will also regain a majority in the Senate.
Perhaps there would be enough Democrats to vote for repeal, but that seems a long shot. In order for a repeal bill to succeed, there would need to be enough votes in both the House and Senate.
Assuming the unlikely does happen and there is a majority of votes in both the House and Senate to repeal, the next step is getting it past the President's veto. Does anyone believe that President Obama would accept repeal? That means there would need to be a veto override, which requires a 2/3 majority in both the House and the Senate. That seems impossible, absent a miracle.
The next avenue would be a repeal after the next Presidential election in 2012. That assumes a Republican will win and a Republican majority in both the House and the Senate. That's assuming a lot. Take into account the realities noted about the step by step implementation, and there are still problems.
Of course, questioning candidates for Congress on whether or not they would vote for repeal is important. While voting on a single issue is not a good idea, this factor should be at the top of voters' lists of priorities in deciding for whom they will vote.
To be very clear, this avenue should ultimately be pursued regardless of when it might ultimately succeed. Any action that completely rescinds the law, whether it is judged unconstitutional and therefore null and void or repealed, is best, of course.
The bottom line: Repeal by Congress seems unlikely until at least 2012, which is problematic considering the manner in which the law will be implemented. Repeal in 2012 has its own hurdles. We can't count on repeal by Congress alone or in time.
Weapon #3: Congress votes to de-fund the law's implementation.
Another method of stopping health care from being implemented is that various measures could be introduced and voted on in the House and Senate to withhold funding its implementation.
While I confess I am not as well versed on the details of how this idea would be employed, I am philosophically in favor of it. It is yet another avenue that should be pursued. From what I do understand, it would at the very least slow the implementation down. That would be a very good thing. It's particularly attractive if other actions continue along side it.
I am concerned it is, at best, an incomplete or partial solution; it seems likely that it would ultimately result in some elements going into effect, leave others in limbo, which has obvious problems associated with it, and potentially present an opportunity for a Congress down the road to re-open the can of worms.
But de-funding seems like the most viable short-term option considering the most reliable projections about the outcome of the November 2 elections; there may be enough of a change in both the House and the Senate to pull out the votes to de-fund. This route could be pursued while other actions are being taken, with the hope that there would be a further change in the composition of Congress in 2012 and the election of a President who would not veto a repeal bill.
Bottom line: Efforts to de-fund should definitely occur, but it does not solve the problem. It only helps preserve the status quo in the short-term so a remedy may be effected through other means.
Weapon #4: States should avoid taking any non-mandatory steps to implement the law.
It's critical that every Nebraskan understand that many elements of the bill will be implemented through the State.
In order to employ this "weapon", it requires inaction, literally. There is a list of dates on which various elements of the law will be implemented. A number of them are optional and accompanied by offers of federal money which serve as "teasers" to entice state involvement. Once the bait is taken, however, states are going to find it impossible to free themselves from program commitments even though the federal money that initially lured them to take the plunge disappears. Obviously, to avoid the incremental implementation approach that was constructed, states cannot be engaging in ANY of the optional elements.
Of course this is vital for states like Nebraska, which are involved in the Attorneys General lawsuit. It seems common sense that a state engaging in optional implementation actions would be weakening its own arguments in the court case. If a state really believes the law is unconstitutional, it would avoid any active engagement.
This path becomes tricky, since there are implementation dates which are "no turning back" and from a legal perspective, technically mandatory. There is not room here to go into the several positions on what constitutes "civil disobedience" or what is merely refusing to implement an unconstitutional law. This is yet another subject we intend to address in future in more detail.
The bottom line: States should avoid engaging in optional health care implementation program elements altogether. Nebraskans should engage in a debate regarding how far they expect their state officials to go in avoiding implementation.
Weapon #5: States should pass nullifying legislation.
A number of states have already passed some form of nullifying legislation; Idaho passed a bill last session that nullifies the law in Idaho and lays out specific actions that will be taken by particular state officials and agencies, including the State's Attorney General. Missouri voters passed a ballot initiative in June that nullifies some portion of the law. There is a measure on Arizona's ballot for November 2. These are just a few examples.
States have for so long failed to exercise their "sovereignty" muscles they seem to have atrophied. According to the Constitution, particularly the Tenth Amendment and a surprising number of Supreme Court rulings which have consistently reaffirmed the concept, there is definitely a dual federalism that exists within our system. The real reason the majority of us have been ignorant of States' ability to exert their sovereignty is because the elected officials in them have failed to do so too often and for too long.
Nullification measures are necessary in the same way Sovereignty Resolutions were and they are a next natural step in the process of reclaiming Sovereignty. But properly written nullification legislation would have the force of law and require or prohibit certain actions. Rather than relying solely on the office of the Governor or the Attorney General in an ad hoc fashion to take initiative, a well-written nullification law would coordinate and direct action on the whole subject.
Further, since State government is bloated and complex and branches, departments, and agencies so frequently act too independently and with far too little oversight, a nullification measure would take all branches of State government into account and clearly direct activity.
There have already been a number of activities within Nebraska that are the beginning of health care implementation. If Nebraskans want these activities stopped before the process reaches a point of no return, they should be pushing for the introduction of a well-written nullification measure.
Bottom line: A nullification measure is needed to ensure all branches of state government do not work to implement the health care law.
Weapon #6: States should consider radical restructuring of their health care laws in favor of a truly free market system, invoke the available opt-out clause, become independent of the federal government, and file an additional court case based on a 14th Amendment violation.
States are free to opt out of federal health care reform, but there are two serious problems with this option. First, States lose all federal Medicaid funds. That obviously constitutes a serious budgetary problem for Nebraska, which already has projected shortfalls. To deal with this issue, a complete re-think of the way health care is handled in Nebraska would be required. We all know the system needs changing, but neither political party addresses real solutions. Political parties aim at limited targets. When it comes to the real reasons health care costs have ballooned out of control, there is plenty of blame to go around. Everyone from the patient / consumer to the insurance companies and most of all, government deserves a black eye. We'll address this subject comprehensively in another article in the very near future, but it's time we all began pondering what really makes health care so expensive.
I would argue that we can either take the steps necessary now to really fix this problem while we still have the ability to control the outcome, or we can bury our heads in the sand and either allow our system to be turned into the government-run, single-payer plan that is the end goal of the planners who pushed for the health care law's passage or wait for the meltdown that is guaranteed to come. We all know what a single-payer system means, I don't need to go down that list here.
Even if we are prepared to deal with a very necessary restructure of Nebraska's health care system, opting out of the federal reform does not mean we are off the hook to pay for it for the other 49 participants. That's why I included the idea of filing an additional lawsuit on the grounds that forcing Nebraskans to pay for program in which they are not participating is a violation of the equal protection clause found in the 14th Amendment.
Bottom line: A restructuring of health care is ultimately necessary regardless of whether or not the health care law is repealed by Congress, judged unconstitutional, or Nebraska passes nullification legislation. The health care system does need to be fixed as the current system is entirely unsustainable. Failure to recognize all of the root causes and having the political will to address them comprehensively was the reason it was possible to get the health care law we're now stuck fighting.
We can no longer avoid the day of reckoning on this subject; that moment is here.