Nullifying the Law of the Land

“It’s the law of the land.” This has been the repeated refrain from defenders of ObamaCare against any effort to repeal, replace, or reform the disastrous policy that is causing millions of Americans to lose their existing health insurance and experience drastic, unexpected premium hikes.

The argument seems to be that, once a bill becomes law, it is effectively carved in stone and can never be changed. This would be baffling enough on its own—what if the same logic had been applied to prohibition or slavery?—but it takes a special kind of hypocrisy to persist in this line of attack amid the executive actions of which President Obama seems so fond.

In addition to selectively ignoring laws he doesn’t like, the president has repeatedly altered this “law of the land” on his own authority, bypassing Congress and the conventional lawmaking process, and assuming legislative duties outside of those granted him by the Constitution. Whenever an unpopular provision threatens to take effect at a politically inconvenient time, the president’s concern for upholding the law as written flies out the window, replaced by an eagerness to hand out delays and waivers to protected interest groups and large voting blocs.

Clearly, the designation “law of the land” doesn’t have the rhetorical clout its exponents claim, but that street runs both ways. If the president does not see fit to abide by his own laws, then why should the rest of the country submit without a fight?

Fortunately, the rest of the country is doing no such thing. Today, the Georgia State Senate resurrected a bill many feared was dead, blocking the ObamaCare health insurance exchanges in the state and therefore weakening the law’s hold on the Georgia public. Later today, a vote is expected on a nullification bill in South Carolina.

Overall, eleven states have undertaken legislative action to effectively nullify the Affordable Care Act, protecting their citizens from its harmful effects. Contrary to popular opinion, this does not simply mean a refusal to abide by federal law, but is instead a respected and legal legislative process with a lengthy history of judicial precedent. For more than 150 years, the Supreme Court has recognized “the anti-commandeering doctrine,” which holds that states cannot be coerced into enforcing federal statutes. Thus, when the Department of Health and Human Services threatened states with the loss of federal funding if they failed to expand Medicaid, the Court ruled in favor of the states, holding that such a threat violated the anti-commandeering doctrine.

The states in question recognize that they have no legal obligation to take on ObamaCare’s enforcement duties, and as such are taking steps to ban the operations of health insurance exchanges and decline any enforcement of the ObamaCare mandates. This would force the federal government to take on 100 percent of enforcement duties itself, an immense task for which it is utterly unprepared. A key assumption behind the law was that states could be forced into cooperation. Absent this, there are simply not enough federal resources to enforce the law in its current form.

Another important action states are taking is to block the expansion of Medicaid, which was supposed to account for an additional $1 trillion in entitlement spending. Blocking the Medicaid expansion would go a long way towards defunding the new entitlement spending under the Affordable Care Act.

ObamaCare has already been shown to be an abject failure, with most of its effects so far being the exact opposite of what Americans were promised. In a desperate move to salvage its signature accomplishment, the Obama administration has continually moved the goalposts, issuing delays and exemptions, and walking back earlier promises. Most recently, Vice-President Biden attempted to lower expectations by revising enrollment projections downwards—a necessary step due to the law’s inability to attract young enrollees.

The massive amounts of political capital the president and his allies invested in the Affordable Care Act means that the fight to repeal it will be long and difficult, even if Republicans take back the Senate this November. In the meantime, the best chance at dismantling ObamaCare and beginning to undo the damage is for the states to take matters into their own hands, effectively nullifying the law and forcing the federal government to assume responsibility for the “law of the land” it has forced upon the American people.

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